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THE GOVERNMENT 



OF THE 



UNITED STATES 



BY 



BERNARD MOSES, Ph.D., LL.D. 

PROFESSOR OF HISTORY AND POLITICAL SCIENCE 
IN THE UNIVERSITY OF CALIFORNIA 




NEW YORK 
D, APPLETON AND COMPANY 

1911 






Copyright, 1906, 1911, by 
D. APPLETON AND COMPANY 



V 

(0 CI. A 2 N i) 9 2 



PREFACE 



The main purpose of this book is to show what the Gov- 
ernment of the United States is, by giving a sketch of its 
organization and the general methods of its working. It 
deals not only with the central, or Federal government, but 
also with the State, Territorial, and local governments; and 
all of these taken together make up the Government of the 
United States. Students who undertake the study of this 
Government should keep in mind the fact that each of the 
governments, local, State, and Federal, exercises some part 
of the political power of the nation. This is the territorial 
distribution of power. He should also keep in mind the fact 
that in the town or city government, as well as in the State 
or Federal government, the power which each holds is 
divided among the legislative, the executive, and the judicial 
departments. This is a distribution according to the kind 
of power to be exercised. Thus, in order to understand how 
this nation is governed, one must give attention to both of 
these forms of distribution. 

The topics here treated, concerning the organization and 
powers of the Government, constitute a general subject by 
themselves. If properly comprehended, they show us what 
the Government is. They are sufficient to occupy the student 
during the time usually allotted to this study, and they must 



IV PREFACE 

be understood before he can give his attention most profits 
ably to the questions that arise in the course of the Govern- 
ment's practical work. 

It will be observed that the book is divided into a series 
of numbered sections. In each of these sections a more or 
less distinct subject is treated, and it is believed that from 
this discussion of the various institutions of the Government 
a knowledge of the whole as well as of the individual parts 
will be easily acquired. The formal topics following each 
section are intended to assist the student in analyzing the 
text, and in finding out what are the essential points. Then 
by making use of the references to parts of other books, which 
are printed immediately below the topics, the student will, it 
is expected, acquire the habit of getting information from 
many sources. Through this practice he may, moreover, 
gradually prepare himself for investigating the subjects that 
are placed at the end of the several chapters. By reading 
carefully the documents and passages cited, the student may 
acquire a broader view than any single volume will convey; 
and under proper guidance he may receive, by the use of this 
material, training in the process of Verifying statements con- 
cerning historical and political affairs. It will be generally 
expedient, however, for him to omit these subjects for ad- 
vanced study until after thoroughly mastering the rest of 
the volume. Bernard Moses. 

University of California. 



CONTENTS 



CHAPTER ■ PAGE 

I. — The Colonies 1 

II. — Union and Independence 21 

III. — Under the Articles of Confederation ... 39 

IV. — The Federal Legislature 58 

V. — What Congress Can Do • . 103 

VI, — The Organization, Powers, and Duties of the Fed- 
eral Executive 146 

VII. — The Federal Courts 195 

VIII. — Rights and Privileges of Citizens . . • . . 216 

IX. — The Continental Territories 249 

X. — The Insular Dependencies . . ' . . . . 268 

XL — The Government of the States 281 

XII. — Local Government in the United States . . . 308 
XIII- — The Individual Citizen in Relation to the Govern- 
ment 324 

XIV. — International Relations 358 

APPENDIX 

I. An Ordinance for the Government of the Territory of 

the United States Northwest of the River Ohio . 371 
II. Articles of Confederation 377 

III. Constitution of the United States of America . . 385 

IV. The President's Instructions to the Board of Com- 

missioners of the Philippine Islands . . . .402 
V. An Act Temporarily to Provide for the Administra- 
tion of the Affairs of Civil Government in the 
Philippine Islands, and for Other Purposes . . 409 
INDEX 41 5 



THE GOVERNMENT OF THE 
UNITED STATES 



CHAPTER I 

THE COLONIES 

i. The English Colonies in America. — The fact that 
several nations exist in the world is almost as apparent a* 
the existence of the human race itself. Frenchmen learn 
very early that they are not Englishmen; the Japanese, 
that they are not Russians; and the Spaniards, that they are 
not Germans. Our traditions, our love of country, and our 
reading in history tend to keep clear in our minds the fact 
that the members of our nation constitute a large group by 
themselves, and that they are in some respects separate and 
distinct from those of other nations. The nation may be 
defined as a large independent group of persons possessing a 
definite territory and a supreme government. By a supreme 
government is meant a government that is not under any 
other government. The government of a city in the United 
States is under the State government. The government of 
a State is limited by the authority which the Constitution 
of the United States confers upon the Federal Government. 
The City of New York is a large group of persons and has a 
definite territory — that is to say, we know its boundaries; 
but it is under the government of the State of New York. 
It is therefore not a nation. The State of New York has 
also a definite territory; but it is not a nation, because its 

1 



2 THE GOVERNMENT OF THE UNITED STATES 

government is under the superior authority of the United 
States. The United States has a definite territory, but its 
Government is not under any superior power ; hence we call 
the United States a nation. For the same reasons we call 
France, Italy, or Japan a nation. 

The colonies that were united to form the United States 
were at first under the government of England. They did 
not then constitute a separate nation; they were rather a 
part of the English nation. After they had declared their 
independence and maintained it, and formed a government 
for themselves that was not under any other government, 
then they became the nation that we call the United States 
of America. 

The English Government granted, in large measure, 
to its American colonies the right to govern themselves. 
These colonies were often small in the beginning, but they 
grew strong by being compelled to rely upon themselves. 
The colonists found along the Atlantic coast only a sparse 
population of savages, who they expected would disap- 
pear, and who have almost entirely disappeared. From 
these Indians they kept aloof. They drove them back 
into the wilderness, and maintained the European standard 
of civilization. The Spaniards, who settled Mexico and 
South America intermarried with the Indians, and as a 
consequence their descendants fell below the European 
standard. The colonies of Spain were more completely 
dependent upon the mother country than were the colonies 
of England. The most noticeable points of contrast be- 
tween the relations of these two nations with their colonies 
are the following: 

1. The Spanish colonists might not trade with the mer- 
chants of foreign nations. The English colonists were free 
to trade in certain wares with any nation. 

2. For a long time Spain required all trade with America 
to pass through a single Spanish port. England allowed 



THE COLONIES 3 

all her ports to have equal privileges with reference to the 
trade with America. 

3. Spanish colonies might not trade with one another. 
English colonies enjoyed full freedom in their intercolonial 
trade. 

4. Spain laid special stress on getting gold and silver 
from America. England laid special stress on getting raw 
material for her manufactures. 

5. Spain excluded from her colonies all foreign manu- 
factures. England excluded from her colonial markets such 
foreign manufactures as were in competition with her home 
manufactures. 

6. The traditions of the Spanish nation and the state of 
Spanish society in America favored the application of the 
principles of absolutism in the government of the Spanish 
colonies. The traditions of the English nation and the state 
of English society in America encouraged in the English 
colonies the development of popular rule. 

Topics. — Definition of a nation. — Why the State of New York 
may not be called a nation. — How a colony may become a nation. — 
Attitude of the English Government toward its colonists. — Spanish 
system contrasted with the English system. 

References. — Hinsdale, American Government, 26-76; Froth- 
ingham, Rise of the Republic, 1-157. 

2. The Supremacy of the King. — The settlers in Amer- 
ica and their descendants, whether English, French, or 
Spanish, regarded the king as the sole possessor of the 
supreme power over them; and all the colonizing nations 
in Europe participated in the view that American colonies 
were possessions of the king. This view was so firmly fixed 
in the minds of the Spanish- Americans that they considered 
themselves no longer bound to Spain after Napoleon had set 
aside the legitimate Spanish king. The French colonists, 
as the subjects of an absolute monarch, recognized, of 



4 THE GOVERNMENT OF THE UNITED STATES 

necessity, the supremacy of the king alone. The English 
colonists also recognized no supreme authority over them 
but that of the king. 

The rapid growth of the power and prestige of the 
Parliament, however, led to a modification of this idea in 
England. Yet the Americans adhered to the thought that, 
as they were not represented in this body, it had no power 
over them. While, therefore, it was consistent with the 
later English view that the Parliament should have part 
in the government of the colonies, the colonists them- 
selves protested against parliamentary interference in their 
affairs. 

Topics. — American settlers' view of the king. — Attitude of 
the English settlers toward the Parliament. — English opinion as 
to the Parliament's relation to colonial affairs. 

References.— Miller, Lectures on the Constitution, 36, 75. 

3. The Colonial Governments. — At the close of the 
period of dependence, there were three classes of English 
colonies: (1) The republican colonies; those whose governors, 
as well as other officers, were elected by the people. Con- 
necticut and Rhode Island belonged to this class. (2) The 
proprietary colonies; those whose governors were appointed 
by hereditary proprietors. Maryland, Pennsylvania, and 
Delaware belonged to this class. (3) The royal colonies; 
those whose governors were appointed by the crown. This 
class embraced Georgia, the two Carolinas, Virginia, New 
Jersey, New York, New Hampshire, and Massachusetts 
after 1692. During the colonial period many changes 
were made in the governments of the colonies. Some of 
these governments belonged to different classes at different 
times. Massachusetts, for example, prior to 1692, elected 
her governor, deputy governor, the assistants, and the 
members of the house of deputies. After 1692, under 
the new charter, the governor and the lieutenant governor 



THE COLONIES 5 

were appointed by the crown, while the members of the 
general court continued to be elected by the people. 

In spite of the observed differences relating to the gov- 
ernor, the several colonies were in many respects similar. 
They were all subordinate to the English crown and were 
dependent parts of the English nation. They all had rep- 
resentative legislative assemblies, and these assemblies 
controlled the public funds and directed their expenditure. 
In each colony there was a small body, called the council, 
the assistants, or the magistrates, which in relation to the 
assembly was an upper house, and in relation to the gov- 
ernor was a cabinet or ministry. It did not take part in 
legislation in some of the colonies. In Pennsylvania, it 
performed only executive duties. In some cases the mem- 
bers of this council were elected by the people; in other^ 
by the assembly; in still others, they were appointed by the 
king or the lords proprietary. 

It thus appears that the form of most of the colonial 
governments resembled that of the Government of Eng- 
land. The king, the lords, and the commons were repro- 
duced on a small scale in the governor, the council, and 
the assembly. The powers of the commons in England 
and the powers of the assembly in the colonies were derived 
from the people. The king in England received his power 
by hereditary right, and the governor in the colonies re- 
ceived his power in most cases by royal appointment. 
These facts helped to make the assemblies antagonistic to 
the governors appointed by the king, as the House of Com- 
mons was antagonistic to the crown. It was the antago- 
nism, in both cases, between royal power and popular 
power. 

Although the government in England determined what 
the colonial governments might or might not do, yet 
"practically each colony was a self-governing common- 
wealth, left to manage its own affairs with scarcely any 



6 THE GOVERNMENT OF THE UNITED STATES 

interference from home." 1 Through their representatives 
the colonists made their laws and voted their taxes; but the 
British Parliament " could overrule such laws as the colonies 
might make." The colonies insisted, however, that they 
should be free from all taxes except those levied by their 
own authority. Still, in comparison with the Spanish colo- 
nists, the English colonists in this respect enjoyed a large 
measure of freedom. 

Topics. — The classes of English colonies. — The assembly and 
council, assistants, or magistrates. — General form of colonial gov- 
ernments. — Relation of royal to popular power. — Self-government 
in the colonies. 

References. — Fiske, Civil Government, 146-165; Hart, Actual 
Government, 41-45 ; Macy, Our Government, 28. 

4. Local Government in New England. — The primary 
local organizations in the governments of the New England 
colonies were towns or townships. The early New England 
town was a subordinate political society within a colony. 
It was a little republic, but limited in its action by the supe- 
rior authority of the colony of which it was a part. The 
territory 'of the colony was divided up into townships. 
This was a revival of the condition of early England, when 
"the whole country was cut up into vills or towns," and 
" the law assumed that every acre of land lay in some town, 
some villa." 2 

The most important feature of the political organization 
of the town was the assembly of freemen, or qualified voters, 
in a town meeting. This meeting, embracing all the voters 
of the town, was held at least once a year, in the spring. 
It might be called at other times by the selectmen, and must 
be called by them on the demand of ten voters. This 
assembly performed the functions of both the electors and 

1 Bryce, American Commonwealth, i, 16. ' 

2 Maitland, Township and Borough, 8. 



THE COLONIES 7 

the legislature in a representative republic: (1) It elected 
the officers of the township. (2) It made the laws, voted 
the taxes, and appropriated to various purposes the sums 
raised by taxation. The assembly was convened in the 
central village of the township, and held its sessions in 
the town hall, the church, or the schoolhouse. The officers 
elected by the town meeting were the selectmen, a town 
clerk, a treasurer, assessors, a collector, a constable, and 
several minor officers. The number of the selectmen was 
three, five, seven, or nine, depending upon the size of the 
town and the amount of its public business. The selectmen 
constituted the executive of the town. The town clerk kept 
the town's public records of whatever sort. The treasurer 
received all money gathered from the taxpayers, or obtained 
by the town from other sources; and from these public fund^ 
he paid the public expenses of the town. The constable's 
functions in relation to the town were in some respects 
similar to the functions of a sheriff in relation to the county. 
Among the other officers were the assessors of the taxes and 
the overseers of the poor. The overseers of the poor 
superintended whatever public provision was made for the 
maintenance of the paupers of the town. There were also 
school committees, surveyors of highways, poundkeepers, 
inspectors of lumber, measurers of wood, and sealers of 
weights and measures. 

The county, as a political entity larger than the town, 
came into existence through the cooperation of several 
causes: 

1. The county had existed in England, and the concep- 
tion and traditions of it were brought to America by the 
English colonists. 

2. It was a convenient organization for supplementing 
both the work of the town and the work of the central gov- 
ernment of the colony. 

3. It was the result of the first step in the normal process 



8 THE GOVERNMENT OF THE UNITED STATES 

of social growth, by which the primary political bodies were 
united and finally amalgamated into the nation. 

The shire, or county, in England was not one of a number 
of units into which the nation had been divided; it was, 
instead, but one of the constituent elements that were 
.brought together to form the nation. Through the shire- 
mote, or county court, it exercised both legislative and 
judicial power. The most important single officer of the 
county was the sheriff. At first he was elected by the 
people, but later he was appointed by the king. He was 
the agent of the central government in the county. He 
was the executive officer of the courts; he summoned juries 
and executed judicial decrees. Other officers of the county 
in England were the coroners and the justices of the peace. 
A coroner formerly exercised extensive powers, but later 
his most prominent function was to summon a jury for de- 
termining the cause and manner of mysterious deaths. He 
held and exercised, also, certain police powers. Justices of 
the peace were administrative and judicial officers. After 
1362, they were required, in an English county, to hold 
four meetings a year. When they were organized in these 
meetings, they constituted the Court of Quarter Sessions. 

These essential features of the county were brought to 
New England by the settlers of Massachusetts. The four 
groups into which the towns of Massachusetts were gathered 
became in 1643 the counties of Suffolk, Norfolk, Essex, and 
Middlesex. They were organized as judicial districts, with 
the sheriff as the chief executive officer, and with a jail and a 
court-house as the principal public buildings. The office of 
the justice of the peace had already been established, and 
before the close of the seventeenth century these officers 
were organized in a body known as the Court of General 
Sessions. This court could try both civil and criminal 
cases; namely, civil cases involving not less than forty shil- 
lings, and criminal cases not involving a penalty of death 



THE COLONIES 9 

or banishment. The sheriff and the justices were appointed 
by the governor. In addition to this judicial organization, 
the county had also a military organization. Each town 
furnished a company, and the several companies were 
united and formed a county regiment. 

In New England, the county was less important than the 
town. It was in the town that the inhabitants were trained 
for self-government. It was the towns, moreover, that 
maintained and developed the public schools. By a general 
law of Massachusetts, passed in 1647, it was ordered, "that 
every township in this jurisdiction, after the Lord hath 
increased them to the number of fifty householders, shall 
then forthwith appoint one within their town to teach all 
such children as shall resort to him, to write and read." 
The wages of the teachers were paid either by the parents 
or masters of the children, or by the inhabitants in general, 
as might be determined by the authorities of the town. 
And it was further ordered, "that when any town shall 
increase to the number of one hundred families or house- 
holders, they shall set up a grammar school, the master 
thereof being able to instruct youth so far as they may be 
fitted for the university." The New England town elicited 
the admiration of Jefferson. "Those wards," he said, 
"called townships in New England are the vital principle 
of their governments, and have proved themselves the 
wisest invention ever devised by the wit of man for the per- 
fect exercise of self-government, and for its preservation." 

Topics. — Character of the town in New England. — The assembly 
of freemen. — Officers of the town. — The county and its origin in 
New England. — Origin and status of the county in England. — Offi- 
cers of the English county. — The first counties in Massachusetts. — 
The Court of General Sessions. — Military affairs of the county. — 
Public schools in Massachusetts. 

References. — Maitland, Township and Borough, 8; Freeman; 
Growth of the English Constitution, Chap. I; Fiske, Civil Government, 
2 



10 THE GOVERNMENT OF THE UNITED STATES 

16-47; Ford, American Citizen's Manual, Part I, 56-61; Hart, 
Practical Essays, 133-147; Hart, Actual Government, 44; Hinsdale, 
American Government, 38-40; Macy, Our Government, 10-14; De 
Toque ville, Democracy in America, i, 73-103; Bryce, American 
Commonwealth, i, 561-592; Levermore, The Town and City Govern- 
ment of New Haven, in Johns Hopkins University Studies, Fourth 
Series; Channing, The Town and County in Massachusetts. 

5. Local Government in the Southern Colonies. — In 

studying local government in the United States, one should 
keep in mind the meaning of the terms used to designate the 
various local divisions or institutions. He should remember 
that a parish was originally a certain district in which an 
ecclesiastic had charge of the spiritual interests of the in- 
habitants. At first, in New England, the parish was the 
same as the town. When the inhabitants of the district in 
question were acting in civil or political matters, they were 
thought of as comprising a town; when they were acting as 
a body in religious matters, they were thought of as com- 
prising a parish. In some places districts of this kind 
became generally known as parishes; in other places, as 
towns. In Louisiana, a district for merely civil and political 
purposes came to be designated a parish. 

A hundred was composed of a number of townships, 
and formed part of a shire or county. In early England 
every freeman was required to be enrolled in a hundred; 
and the members of a hundred, or the inhabitants of a 
district known as a hundred, held meetings at times deter- 
mined by custom or law. And the term court, as applied 
to early local institutions in the United States, does not 
always mean a judicial body. It is sometimes applied to a 
body having power to make laws as well as to try persons 
for the violation of law. 

In the southern colonies the county overshadowed the 
parish, the hundred, and the town. In 1634, eight shires 
were created in Virginia. After 1643, they were called 



THE COLONIES 11 

counties; and at this date they were thirteen in number. 
Their officers were lieutenants, sheriffs, sergeants, and 
bailiffs. Under these officers it was proposed to make the 
government of a colonial county like that of a shire in 
England. In Virginia the counties were original groups, 
while in New England they were formed by the union of 
towns. The lieutenant was chief of the militia in the 
Virginia county, and in this position he became especially 
prominent by the long-continued hostilities with the Indians 
and by his duty of directing the police supervision of the 
slaves. The chief judicial authority in the county was 
exercised by the commissioners of the county courts. These 
commissioners, later called justices and magistrates, varied 
in number at different periods. From the county court 
certain cases might be appealed to the general court. This 
latter body at first met in March, June, September, and 
November, when it was called the quarterly court. Be- 
tween 1659 and 1684 there was no June session, and the 
name "quarterly court" appeared to be inappropriate. 
It was then called the general court. After 1684, it met 
in April and October. An important function of the county 
court was levying the county taxes. The sheriff was the 
executive officer of the county court, and at the same time 
the executive officer of the county. He was appointed by 
the governor from a list of three persons nominated by the 
justices. His duties ranged from ducking a witch to carry- 
ing out the decrees of the governor. 

In Maryland the local government was nearly like that 
of Virginia. The hundred was recognized at one time in 
the election of members of the assembly. Later, the as- 
sembly was composed of representatives of the counties. 
The hundred was employed in the fiscal and the military 
administration of the colonies. Taxes were levied and 
collected in the hundred; and the hundreds were the fiscal 
districts in the counties. They were also military districts, 



12 THE GOVERNMENT OF THE UNITED STATES 

in which the "trained bands" of the local militia were 
organized. Several hundreds were sometimes united to 
constitute a parish in Maryland, but in old England the 
hundred in many cases embraced several parishes. In the 
course of time the boundaries of hundreds throughout 
Maryland, "by vacating old roads, opening new ones, and 
other causes, were in a great measure obliterated and for- 
gotten"; and the hundred ceased to be recognized in the 
administration of public affairs. The term "county" 
appears to have been used for the first time in Maryland in 
1638. The first district of Maryland to receive this desig- 
nation and to exercise the powers indicated by it was St. 
Mary's County. The county here was at first a judicial 
district in which taxes were levied and elections were held. 
It was from the counties that burgesses, or members of the 
local legislature, were sent to serve in the assembly, the 
number to be sent from each county varying from one to 
four. The central feature of the county organization was a 
judicial body called the county court. It was composed 
of commissioners appointed by the governor. The county 
court was therefore not a representative body; nor was it 
a democratic assembly; and its functions were never legis- 
lative. The sheriff was the most important single officer of 
the county in Maryland as well as in Virginia. He was 
appointed by the governor; but his original independence 
was ultimately lost, and he fell under the direction of the 
assembly, although he continued to be appointed by the 
governor. The sheriff's duties were similar to those per- 
formed by the sheriffs of the English shire. The county 
had other officers in addition to the sheriff and the com- 
missioners who made up the county court. The most 
conspicuous of these were the coroner and the commander 
of the militia. 

These were the typical local institutions of the southern 
colonies. The county was the effective unit. The inhabit- 



THE COLONIES 13 

ants lived scattered on large plantations. The extent of 
the plantations, and the comparatively few persons occupy- 
ing a considerable area, made it necessary that a portion of 
territory very much larger than, a New England township 
should belong to the political unit; otherwise, the political 
body would contain only a very few persons, too few to 
render it a proper political organization. The Congrega- 
tional Church, moreover, was wanting, and there was no 
centralizing influence to draw the inhabitants together as 
the church had drawn them together in New England. 
There were no manufactures to induce the people to live 
in towns rather than on the great plantations. On the 
plantations there were gathered numbers of dependents, 
and this condition of things threw the management of public 
affairs into the hands of an aristocratic minority. A few 
men thus became very well trained for the business of gov- 
ernment; and their special fitness and their opportunity of 
continuing in office gave them an extraordinary influence 
in the government of the colonies to which they belonged, 
and, later, in the government of the nation. 

Topics. — Officers of the southern county. — The county court. — 
The general court. — The sheriff. — Local government in Maryland. 
— The hundred. — The county in Maryland. — The assembly. — Con- 
trast between the social conditions of New England and those of 
the southern colonies. 

References. — Fiske, Civil Government, 57-74; Hart, Practical 
Essays, 147-161; Hart, Actual Government, 45; Hinsdale, American 
Government, 40-42; Macy, Our Government, 17, 18. 

6. Local Government in the Middle Colonies. — In the 

middle colonies the local government differed from that of 
New England as well as from that of the southern colonies. 
It embraced the principal features of the local government 
in both of these regions. Both towns and counties were 
recognized as parts of the political organization. The be- 



14 THE GOVERNMENT OF THE UNITED STATES 

ginnings of New York are found in the charter granted, in 
1614, to the United NewNetherland Company, by the States- 
General of Holland. This company was established to 
trade with the Indians, not to found colonies. The charter 
of the United New Netherland Company expired in 1618. 
The privileges it had enjoyed were granted to the West 
India Company in 1621. The general government of this 
company was vested in a board or assembly of nineteen 
delegates, who elected a director general and a council. 
The director general and the council held "all powers, 
judicial, legislative, and executive,", under the permanent 
authority of the resolutions and customs of the Fatherland. 
The West India Company established certain proprietors 
called "Patroons." Each "Patroon" received a grant of 
land extending sixteen miles on one side of the Hudson 
River, or eight miles on both sides, " and as far into the coun- 
try as the situation of the occupiers will permit." It was 
required of the persons receiving these grants that each 
should plant a colony of fifty persons over fifteen years of 
age. Each should undertake also to support a schoolmaster 
and a minister of religion. Manufacturing was prohibited. 
The " Patroon " was permitted to receive the services of the 
colonists, whose position under the "Patroon" was similar 
to that of the vassals with reference to their lords under 
European feudalism. 

More liberal provisions for governing the Dutch settle- 
ments were made later. Municipal governments were 
framed under the authority of the West India Company. 
A representative government was granted to Brooklyn in 
1646; and a form of municipal government was obtained for 
New Amsterdam in 1652. In 1653, moreover, " the present 
city of Albany was released from feudal jurisdiction." In 
the course of time other towns acquired municipal self- 
government, and under English rule the feudal privileges 
of the landed aristocracy tended to disappear. In New 



THE COLONIES 15 

York, after 1664, the county became an important factor in 
the local government; more important, in fact, than the 
county in New England, but less important than the county 
in Virginia. The town, however, as a vigorous inheritance 
from the Dutch, continued to .maintain itself within the 
county, and to share with the county the control of the 
affairs of the local government. In Pennsylvania, William 
Penn established the county as the largest political division, 
and also carried out the provisions of his charter from 
Charles II, which permitted him " to erect and incorporate 
towns into boroughs, and boroughs into cities." In Mas- 
sachusetts, the town was more important than the county; 
in Virginia, the county was more important than the town; 
but in the middle colonies the counties and the towns 
preserved a more nearly even balance of importance. \ 

Topics. — General character of local government in the middle 
colonies. — Feudalism. — The beginnings of New York. — The West- 
India Company. — "Patroons. " — Later municipal governments 
under the Dutch. — The release of Albany from feudal jurisdiction. 
— The county in the middle colonies. — Penn's influence in Penn- 
sylvania. 

References. — Fiske, Civil Government, 70-80; Ford, American 
Citizen's Manual, Part I, 60-64; Hinsdale, American Government, 
42, 43; Macy, Our Government, 14-16. 

7. The Privilege of Voting. — "In New England the 
right of voting was inherent in persons admitted to the 
freedom of a colony." "A freeman did not become such 
unless he possessed certain prescribed qualifications, and 
until he had been approved, admitted, and sworn." When 
these steps had been taken "he became entitled to the ex- 
ercise of the elective franchise." The candidate for the 
position of freeman had to meet different requirements 
in different places. In Rhode Island and Connecticut, and 
later in Maryland, a person must own land in order to be a 



16 THE GOVERNMENT OF THE UNITED STATES 

freeman. The position of freeman might be lost, and with 
it the right to vote. In some of the southern colonies race 
qualifications for voting were prescribed, which withheld 
the suffrage from the negro, the mulatto, and the Indian. 
In New England and Virginia moral delinquency might 
deprive one of the privilege of voting. In some of the 
colonies this privilege was confined to members of a Prot- 
estant church; in others to those that "acknowledged a 
God." Roman Catholics in most of the colonies, and Jews 
in some of them, could not vote. Women were prohibited 
from voting, by law in Virginia, and by custom in the other 
colonies. In each of the colonies there was a property 
qualification; this was different in different colonies, and 
varied greatly in some of the colonies from time to time. 

Topics. — The right to vote in New England. — The negro and 
the mulatto in the southern colonies. — The religious qualification. 
— Property qualification. — Woman suffrage. 

References. — Columbia University Studies in History, Eco- 
nomics, and Law, iii, 92; Hart, Practical Essays, 40-44, 135-138; 
Hart, Actual Government, 44; Hinsdale, American Government, 
45, 46. 

8. The Rights of the People. — The ideas that had 
become the foundation of civil liberty in England were 
brought to America by the colonists, and were here made 
the basis of colonial institutions. The system of law en- 
forced in England, known as the Common Law, had been 
extended to the English colonies; and the colonists enjoyed 
all the rights of Englishmen under this law. In common 
with the people of England they enjoyed rights under the 
writ of habeas corpus, the rights of life and property, and the 
right of trial by jury in both civil and criminal cases. At 
first, as in England, their freedom was limited on the side 
of religion. In Massachusetts and Connecticut the Con- 
gregational Church was merged in the political organiza- 



THE COLONIES 17 

tion. During part of the history of these colonies only 
members of the church were freemen; and the church, like 
the secular institutions, was supported by general taxation. 
In Virginia the colonists were required to conform, " both in 
canons and constitution, to the Church of England, as near 
as may be. " In 1 632 it was required that all persons arriving 
on any ship should be asked to take the oath of supremacy 
and allegiance; and if any refused, he should be imprisoned. 
Religious freedom in the colonies grew from small begin- 
nings, and in this regard the tolerance of Rhode Island stood 
in sharp contrast with the intolerance of Massachusetts. 

Topics. — Rights of the colonists. — Ecclesiastical restrictions on 
political rights. — Rhode Island and religious freedom. 

References.— Hinsdale, American Government, 44, 45; Cooke, 
Virginia, 169; Cross, The Anglican Episcopate and the American 1 
Colonies, 1-112. 

g. The Court of Assistants. — The Court of Assistants 
exercised not only judicial but also legislative power. The 
first Court of Assistants organized in New England was 
formed at Charlestown, in Massachusetts, in 1630. Seven 
members were present, which number, according to the 
charter, was necessary in the beginning to give legal force 
to the acts of the court. This became the normal quorum; 
but afterwards, whenever there were nine assistants in the 
colony, a majority of them present might constitute a legal 
court. At the second meeting, it was decreed " that every 
third Tuesday there should be a Court of Assistants held at 
the governor's house." Three weeks thus became the in- 
terval of the regular meetings, which were, however, some- 
times interrupted for longer periods. 

Topics. — Powers of Court of Assistants. — Organization of first 
Court of Assistants. — Times of meeting. 

References. — Palfrey, History of New England, I, 317-327; 
Fiske, Civil Government, 153, 154, 



18 THE GOVERNMENT OF THE UNITED STATES 

io. Trial by Jury. — Trial by jury was early adopted in 
all the New England colonies except New Haven. That 
colony, it was said, could find no authority for this form of 
trial in the Old Testament. In view of the difficulties en- 
countered by juries in their attempts to reach unanimity 
where the law was indefinite, it was provided that after 
continued failure to agree, and after a conference with the 
court, "a majority of the jury should decide the issue; and, 
if they were equally divided, it should be determined by the 
sitting magistrates." In capital offenses special juries 
were summoned, and a unanimous verdict of guilt was re- 
quired for conviction. Juries were employed in both the 
county court and the Court of Assistants, except in cases 
involving less than forty shillings. These cases were tried 
by the judge's alone. 

Topics. — Adoption of trial by jury. — Majority decisions. — 
Special juries. — Where and when not employed. 

References. — Hinsdale, American Government, 45, 46; Fiske, 
Civil Government, 20, 21, 186. 



FOR ADVANCED STUDY 

Origin of Local Government in the Colonies. — Fiske, 
Civil Government, 16-21, 35-41, 57-77; American Political Ideas, 
31-53; Doyle, English in America, iii, 10-17; Hosmer, Anglo- 
Saxon Freedom, 118-121. 

The Government of Virginia, 1606-25. — Preston, Docu- 
ments, 1-35; Lodge, English Colonies, 1-12; Fiske, Old Virginia, 
i, 177-188, 191-194; ii, 9-18, 23-30, 34, 35, 174-181, 203-218; 
Doyle, English in America, i, 101-184; Hart, Contemporaries, i, 218- 
225; Hosmer, Anglo-Saxon Freedom, 122-125; Thwaites, Colonies, 
96-98, 100-104, 106-109. 

The Governor and Company of Massachusetts Bay. 
■ — MacDonald, Select Charters, 37-42 ; Preston, Documents, 36-61 ; 
Ellis, Puritan Age and Rule, Chap. VII; Fiske, The Beginnings of 



THE COLONIES 19 

New England, 92-104; Fiske, Civil Government, 146-148; Winsor, 
Boston, i, 151-159; Palfrey, History of New England, i, 283-329; 
Doyle, The English in America, ii, Chap. Ill ; Hart, Contemporaries, 
i, 366-382. 

The Union of Church and State in New England 

Walker, History of the Congregational Church in the United States, 
Chaps. III-VI; Ellis, Puritan Age and Rule, Chap. VI; Fiske, 
Beginnings, 108, 109, 247-252; Palfrey, History of New England, i, 
344-348, 383-389; Hart, Contemporaries, i, 330-333, 393-396; 
Lauer, Church and State in New England (Johns Hopkins University 
Studies); Winsor, Boston, i, 14S-155; Doyle, The English in America, 
ii, 146-148. 

Massachusetts as a Royal Province. — MacDonald, Select 
Charters, i, 205-212; Doyle, English in America, iii, 339-358, 372- 
383 ; Hutchinson, History of the Colony of Massachusetts, i, 372-387 ; 
Fiske, Beginnings, 271-278; Fisher, The Colonial Era, 218-225. v 

The Development of Religious Freedom in New Eng= 
land. — Arnold, History of Rhode Island, i, Chap. I-IV; Ellis, 
Puritan Age and Rule, Chap. VIII; Walker, History of the Congre- 
gational Church, 129-136; Fiske, Beginnings, 114-116; Hart, Con- 
temporaries, i, 402-406 ; Schaff , Progress of Religious Freedom, 80. 

The Beginnings of Popular Government in Connecti= 
cut. — Hart, Contemporaries, 415-422; MacDonald, Select Charters, 
i, 60-65; Preston, Documents, 78-84; Old South Leaflets, 8; Johnston, 
Connecticut, 56-64; Fiske, Civil Government, 155-208; Fiske, Begin- 
nings, 127, 128, 135, 136; Levermore, The Republic of New \ Haven, 23. 

The Government of New Netherlands. — O'Callaghan, 
History of New Netherlands, ii, Book VI, Chap. VIII; Fiske, Dutch 
mid Quaker Colonies, i, 131-140, 162-201 ; Lodge, English Colonies, 
286-292; Thwaites, Colonies, 198-202; Drake, Making Virginia, 
123-138; Hart, Contemporaries, i, 529-537 ; Schuyler, Colonial New 
York, i, 11-26; MacDonald, Select Charters, i, 43-50. 

The Beginnings of Government in Pennsylvania. — 
MacDonald, Select Charters, i, 183, 192-199; Fiske, Dutch and 
Quaker Colonies, ii, 114-118, 140-166, 316, 317; Hinsdale, Old 
Northwest, 98-103; Fiske, Civil Government, 151; Hart, Contempo- 
raries, i, 554-558; Gordon, History of Pennsylvania, Chaps. III-IX; 



20 THE GOVERNMENT OF THE UNITED STATES 

Sharpless, Two Centuries of Pennsylvania History, Chaps. I- VI; 
Sharpless, A Quaker Experiment in Government, Chaps. II-VIII. 

Lord Baltimore and the Charter of Maryland.— Pres- 
ton, Documents, 63-77; MacDonald, Select Charters, i, 53-59; W. 
H. Browne, Maryland, Chap. II; Fiske, Old Virginia, i, 256-281; 
Doyle, The English in America, i, 195, 277-281; Lodge, English 
Colonies, 93-100; Drake, The Making of Virginia, 66-79; Eggleston, 
The Beginners of a Nation, 234-239. 

Religious Toleration in Maryland. — MacDonald, Select 
Charters, i, 104-106; Hart, Contemporaries, i, 291-294; W. H. 
Browne, Maryland, 57-89; Fiske, Old Virginia, i, 301-318; Doyle, 
The English in America, i, 275-313 ; Hart, Contemporaries, i, 262-267. 

The Early Decades of Government in the Carolinas. 
—MacDonald, Select Charters, i, 120-125, 149-168; McCrady, His- 
tory of South Carolina, i, Chaps. I-V ; Doyle, English in America, i, 
328-380; Fiske, Old Virginia, ii, 270-337; Hart, Contemporaries, i, 
275-280. 

Oglethorpe's Rule in Georgia.— MacDonald, Select Char- 
ters, i, 235-248; Bancroft, United States, ii, 281-299; Winsor, 
America, v, Chap. VI; Fisher, The Colonial Era, 303-312; Hart, 
Contemporaries, ii, 110-126. 

Taxation in the Colonies. — Lecky, History of England, i, 
360; iii, 344, 345; Morley, Walpole, 167-169; Annual Register, 1765, 
25; Bancroft, History of the United States, iii, 97-101, 114, 119, 176- 
186, 202, 208-210; Lamed, History of the United States, 127-132, 144, 
164, 177. 



CHAPTER II 

UNION AND INDEPENDENCE 

ii. The New England Confederacy of 1643. — It is 

possible that different groups of colonies may have had 
different preferences concerning forms of government. 
Nevertheless, they were all of one mind respecting the de- 
sirability of local self-government; and in the course of time 
they were all moved by the desire for union. Before the 
end of the seventeenth century many persons had enter- 
tained the thought that the colonies ought to be joined 
together in a common bond of unity and peace. In the 
first union contemplated, it was proposed to unite the colo- 
nies of similar theological views. The union known as 
the New England Confederacy of 1643 embraced the colonies 
of Massachusetts, Connecticut, New Haven, and Plymouth 
— in all, twenty-four thousand inhabitants. The central 
power in this confederacy was vested in a body of eight 
commissioners, two from each colony, who should meet 
once a year. The aim of the union was to provide concerted 
action for self-defense and for the advancement of the 
common welfare. The power to impose taxes remained 
with the governments of the several colonies; with them 
remained also the executive power. The body of the com- 
missioners could only advise the colonial governments and 
recommend measures. 

Topics. — Points regarding which the colonies were in agree- 
ment. — First union contemplated. — Colonies embraced in first 
union effected. — Organization of this union. — Purpose and powers. 

21 



22 THE GOVERNMENT OF THE UNITED STATES 

References. — Fiske, Civil Government, 210 ; Hart, Actual 
Government, 48; Macy, Our Government, 36; Frothingham, Rise of 
the Republic, 29-66. 

12. Steps toward a General Congress. — The first call 
for a general congress of the English colonies of America 
was made by the general court of Massachusetts. It was 
dated March 19, 1690. The following is a copy of the origi- 
nal order: 

"Their majesty's subject's in these northern plantations 
of America, having of late been invaded by the French and 
Indians, and many of them barbarously murdered and are 
in great danger of further mischiefs: For the prevention 
whereof, it is by this court thought necessary that letters 
be written to the several governors of the neighboring 
colonies, desiring them to appoint commissioners to meet 
at New York on the last Monday of April next, then to 
advise and conclude on suitable methods in assisting each 
other for the safety of the whole land. And that the 
governor of New York be desired to signify the same to 
Virginia, Maryland, and parts adjacent." 1 

Each colony invited sent a cordial reply, but the cir- 
cumstances of some of them did not permit them to be rep- 
resented at the meeting. Commissioners of four colonies 
convened at New York. Maryland promised to cooperate 
in the undertaking; and the five colonies agreed to raise 
eight hundred and fifty-five men to subdue the French and 
Indian enemies. The quota of each colony was as follows: 
New York, 400; Massachusetts, 160; Plymouth, 60; Con- 
necticut, 135; Maryland, 100. 

This undertaking had its principal significance not in the 
results of the expedition against Canada, but in its sugges- 
tions as to possible achievements through union. The 

1 Quoted by Frothingham from Massachusetts Archives, xxxv, 321. 



UNION AND INDEPENDENCE 23 

French in their zeal for extending their dominion in America 
offered a continual menace to the English colonies, and led 
the colonists to see that they had a common interest and 
must have a common council — one head and one purse. 

The most notable of the early congresses was that con- 
vened at Albany in 1754. It was composed of twenty-five 
commissioners, representing seven colonies: Massachusetts, 
New Hampshire, Connecticut, Rhode Island, Pennsylvania, 
Maryland, and New York. It recommended a plan for the 
union of the colonics. This plan provided for a general 
government, "under which each colony might retain its con- 
stitution." The conspicuous features of the general govern- 
ment proposed were a grand council and a president general. 
The grand council was to be composed of deputies from the 
colonies, elected by the assemblies: Massachusetts Bay, 7; 
New Hampshire, 2; Connecticut, 5; Rhode Island, 2; New 
York, 4; New Jersey, 3; Pennsylvania, 6; Maryland, 4; Vir- 
ginia, 7; North Carolina, 4; South Carolina, 4; in all, 48. The 
president general was to be appointed and supported by the 
crown. By a vote of the congress the plan was laid before the 
authorities of the several colonies, but it was nowhere adopted. 

After the failure of the Albany plan, the antagonism 
between the American and the English views respecting the 
colonies became especially evident. It was generally be- 
lieved that the Government in England was preparing a 
system of "inland taxation" for the colonies. This belief 
was confirmed by the resolutions read in the House of 
Commons, March 9, 1764, which declared that the Govern- 
ment proposed to raise a revenue in America by imposing 
a stamp tax on all documents used in court and on all legal 
documents of whatsoever kind. This declaration provoked 
opposition in America and led the assemblies of all the 
colonies to consider a proposition for joint action. In spite 
of the protests and petitions of the colonists, the proposed 
bill became a law in March, 1765. In the following October, 



24 THE GOVERNMENT OP THE UNITED STATES 

a congress of twenty-eight delegates, representing nine 
colonies, met in New York. Virginia, New Hampshire, 
Georgia, and North Carolina were in sympathy with the 
movement, but were not represented in the congress. After 
mature deliberation the congress adopted a declaration of 
rights and grievances. Through this declaration the 
colonists affirmed their affection for the king, claimed the 
rights and privileges of subjects in England, and acknowl- 
edged "all due subordination" to Parliament. They 
affirmed, moreover, that taxes could not lawfully be imposed 
upon them, except by their legislatures, and that they en- 
joyed the right of trial by jury in common with all other 
subjects of the king. There was no hint of a desire for 
separation. The assemblies of the colonies approved the 
action of the congress. 

Topics. — First call for general congress of the colonies. — 
Meeting at New York. — Immediate purpose of the meeting. — -Plans 
of the French in Canada. — Congress of Albany, 1754. — Albany- 
plan for union. — -Grand council and president general. — Fate of the 
Albany plan. — "Inland taxation." — News of the proposed stamp 
tax. — New York congress, 1765. — Action of New York congress. 

References. — Fiske, Civil Government, 211 ; Hart, Actual 
Government, 48; Hinsdale, American Government, 64-71; Lalor, 
Cyclopaedia, i, 45; iii, 787; Macy, Our Government, 37. 

13. Restrictions on the Economic Freedom of the 
Colonies. — By the navigation laws it was provided that all 
commodities imported into, or exported from, any English 
colony in Asia, Africa, or America should be carried in 
vessels owned in England or in the colonies, of which the 
masters and at least three-fourths of the mariners were 
English. The Virginians were annoyed by this restriction, 
for they had been accustomed to ship large quantities of 
tobacco in Dutch vessels; but the people of New England, in 
the course of time, found it a less inconvenience: it "stimu- 



UNION AND INDEPENDENCE 25 

lated shipbuilding and the shipping interest in the colo- 
nies." 2 " In less than twenty years New England ships be- 
gan to be sold in Old England. During the next few 
decades the business sprang up in every town along the 
New England coast and in many a riverside village for 
miles inland." 2 

By the act of 1660 it was provided that certain wares 
enumerated might be carried from the colonies to England, 
but to no other country. These articles were ginger, sugar, 
tobacco, cotton, wool, indigo, fustic, and other woods used 
for dyeing. This list was increased later by the addition of 
rice, tar, pitch, masts, hemp, copper, and beaver skins. 
With reference to the majority of these articles the restric- 
tion was in reality not a serious grievance for the colonists. 
The producers of tobacco and rice suffered most. 

There were restrictions also on manufactures. Wool, 
yarn, and woolen cloth produced in the plantations might be 
manufactured for local needs, but not for a distant market. 
After 1732, hats might be manufactured for sale within the 
colony where they were made; but they might not be ex- 
ported to England, 'to the Continent of Europe, or to the 
other colonies. No steel furnaces or slitting-mills might 
be erected. The prohibition, however, did not extend to 
working in iron on a small scale, as in making nails, bolts, 
and farm implements. 

These restrictions helped to arouse the colonists to re- 
nounce their allegiance to the government of England. 
They were not, in fact, generally burdensome; yet this did 
not prevent them from becoming incentives to independence; 
for what they were in reality was less important than what 
they were thought to be by the colonists of the eighteenth 
century. 

1 Hart, Formation of the Union, 46. 

2 Ashley, in Quarterly Journal of Economics, xiv, 5. 

3 



26 THE GOVERNMENT OP THE UNITED STATES 

Topics. — Ships to be employed in trade with the colonies. — ■ 
Effect of restriction on Virginians. — Effect in New England. — ■ 
Restriction as to wares. — Restrictions on, manufacturing. — General 
effect of restrictions on colonists. 

References. — Hart, Formation of the Union, 46 ; Ashley in 
Quarterly Journal of Economics, xiv, 1-29; Hinsdale, American Gov- 
ernment, 59, 60. 

14. The Congress of 1774. — The increasing hostility 
of the colonists to the policy of the Government in England 
led them to continue to seek redress through united action. 
For this purpose a congress was assembled in Philadelphia, 
September 5, 1774. It was composed of fifty-five delegates 
representing twelve colonies. Georgia elected no delegates. 
The object of the meeting was to recover for the colonies 
their just rights and liberties, and to restore harmony be- 
tween Great. Britain and America. In a Declaration of 
Rights, adopted October 14th, the congress claimed "a free 
and exclusive power of legislation in their provincial legis- 
latures, where their rights of representation could alone be 
preserved in all cases of taxation and internal polity," 
acknowledging only the vote of the king. The congress also 
voted addresses to the king, the people of Great Britain, and 
the inhabitants of British America; and at the same time 
agreed on a commercial policy of non-intercourse with Great 
Britain. The document containing the resolutions of the 
congress was entitled "The Association of the United Colo- 
nies/' and was signed by fifty-two members. Addresses 
were made also to the people of Quebec, St. John's, Nova 
Scotia, Georgia, and East and West Florida, urging the 
adoption of the measures taken by the congress. The 
congress determined that another meeting should be held on 
the tenth of the following May, unless in the meantime there 
should be a redress of grievances. It was dissolved on the 
twenty-sixth of October. The principal achievement of 



UNION AND INDEPENDENCE 27 

this and the preceding congresses was the union of the 
colonies. Union had become the basis of their hope of 
liberty. 

Topics.— Purpose of Congress of 1774.— The Declaration of 
Rights. — "The Association of the United Colonies." — Proposition to 
neighbors on the north. 

References. — Bryce, American Commonwealth, i, 17; Froth- 
ingham, Rise of the Republic, 331, 336-340, 358, 360-381, 408; 
Fiske, Civil Government, 212; Hart, Actual Government, 48, 49; 
Hinsdale, American Government, 71; Macy, Our Government, 37. 

15. The Congress of 1775. — When the tenth of May, 
1775, came, there had been no redress of grievances; on 
the contrary, actual hostilities had been begun in the en- 
counter at Lexington. The Congress of 1775 met, therefore, 
on the tenth of May, in accordance with the adjournment of 
the previous year. All the colonies were represented, and 
many of the members had sat in the congress of the preced- 
ing year. Among the new members were George Clinton and 
Benjamin Franklin. Peyton Randolph, president of the 
last congress, and Charles Thompson, the secretary, were 
reelected. The object of the meeting was "to obtain re- 
dress of American grievances," "to recover and establish 
American rights and liberties," "to restore harmony be- 
tween Great Britain and her colonies," and "to advance the 
best good of the colonies." Since the meeting of the last 
congress much had happened to change the mental attitude 
of the colonists. In a few months they had been hurried 
on to a position which they had only dimly foreseen. The 
friction in Massachusetts had grown into active hostility. 
The fatal encounters of Lexington and Concord had made it 
necessary to choose between submission and war. But the 
congress was not ready to adopt either extreme. It would 
not block the way to reconciliation, but at the same time it 
resolved that the colonies should " be immediately put into 



28 THE GOVERNMENT OF THE UNITED STATES 

a state of defense." It adopted the colonial troops in 
Massachusetts, called them the army of the United Colonies, 
and made rules for their government. By a unanimous 
vote it elected George Washington to be the commander 
in chief. While it was waiting for a reply to its last petition 
to the king, the congress appeared to be somewhat uncertain 
of its position. After the arrival of this reply, in the form of 
a proclamation for suppressing rebellion and sedition, its 
duty was clear, and it assumed the powers of a sovereign 
body. It stood for the new nation that was coming into 
being. 

Topics. — Condition in calling Congress of 1775. — Membership. 
— Object. — State of affairs in Massachusetts. — Army of the United 
Colonies. — The commander in chief. — Reply to petition to king. 

References. — Frothingham, Rise of the Republic, 420-429; 
Fiske, Civil Government, 212; Hart, Actual Government, 49. 

16. The Continental Congress. — The congress that 
undertook to express the common will of the colonies, 
and to direct their common affairs, before the adoption of 
the Articles of Confederation, was a revolutionary body. 
This means that it had come into existence by a method not 
prescribed in the laws under which the colonies existed. 
These laws provided for a government in each of the several 
colonies, but established no political connection between 
them. The colonies were dependent upon a common 
superior, but no law had been made providing for their 
union. In forming a union and creating a congress as the 
organ of the United Colonies, they went beyond the pre- 
scriptions of the law; their action was revolutionary. The 
delegates to the Continental Congress were appointed by 
the popular branch of the colonial legislature, by conven- 
tions called for that purpose, or " by committees duly author- 
ized to make the appointment." There was, however, no 
agreement among the colonies respecting the number of 



UNION AND INDEPENDENCE 29 

delegates each should send; and the delegates actually sent 
held among the several colonies no uniform ratio to the 
population. There was, moreover, no adequate informa- 
tion at hand for determining the relative importance of the 
colonies with reference either to wealth or to population. 
It was impossible, therefore, for the delegates to adopt a 
method of voting that would assign to each colony a number 
of votes in keeping with its importance. They finally re- 
solved that each colony should have one vote. 

The members of the second Continental Congress were 
appointed before the conflict at Lexington. They were 
appointed for no definite term, but were renewed from time 
to. time in such a manner that the congress became a per- 
manent body. Thus, before the declaration of independence 
" the people of the several colonies had established a national 
government of a revolutionary character"; and "when 
such a government has been instituted for the accomplish- 
ment of great purposes of public safety, its powers are 
limited only by the necessities of the case out of which they 
have arisen, and of the objects for which they were to be 
exercised. When the acts of such a government are ac- 
quiesced in by the people, they are presumed to have been 
ratified by the people. To the case of our Revolution these 
principles are strictly applicable throughout. The congress 
assumed at once the exercise of all the powers demanded 
by the public exigency, and their exercise of those powers 
was fully acquiesced in and confirmed by the people." 1 

This Government was imperfect in its organization in 
many particulars. It could not execute its decrees directly; 
it had no proper national tribunal; and it had no independent 
revenues. The adoption of the Declaration of Independ- 
ence made no important change in the Government. It did 
not increase the number of institutions, nor did it render 

1 Curtis, Constitutional History of the United States, i, 25, 26. 



30 THE GOVERNMENT OF THE UNITED STATES 

more perfect the civil machinery. After the declaration of 
independence, however, the congress was the legal sovereign 
in the United Colonies, now become the United States of 
America. The Continental Congress which held in its hand 
the destiny of the new nation was composed of about twenty- 
five men, and "their number often fell below twenty-five, 
but never rose to more than thirty-five." 1 

Topics. — Character of Continental Congress. — Political position 
of the colonies. — Appointment of members. — Reason for the rule 
of voting. — Significance of Congress with respect to government. — 
Imperfections of the government established. — Number of members. 

References. — Curtis, Constitutional History of the United States, 
i, 1-85; Bryce, American Commonwealth, i, 16-24; Fiske, Civil 
Government, 212-220; Lalor, Cyclopaedia, i, 589; Frothingham, 
Rise of the Republic, 413-489. 

17. The Project of Independence. — The colonists who 
observed to what an extent the several colonies, prior to 
1775, had acted together, saw that the next step must be in- 
dependence. . But on the question of a final separation from 
Great Britain there was a great variety of opinions. The 
Tories were united against it. Many others thought that 
time would bring redress of grievances, and consequently 
wished delay. In the last five weeks of 1775, the Pennsyl- 
vania assembly, the New Jersey assembly, the Maryland 
convention, and the North Carolina provincial congress 
declared their opposition to the project of independence. 
Hitherto, the general congress had made no affirmation in 
favor of separation. But events soon brought the colonists 
into a position where an announcement of their determina- 
tion to be free was inevitable. Separation from Great Britain 
became the theme of discussion in the army, at the fireside, 
in the newspapers, and in numberless pamphlets. When 

1 Friedenwald, The Continental Congress, in Report of American His- 
torical Association, 1894, p. 231. 



UNION AND INDEPENDENCE 31 

the question first came up in congress in the fall of 1775, 
the opposition was strong; but it grew gradually weaker as 
independence was more freely and fully discussed through- 
out the colonies. Before final action was taken by the 
congress, the majority of the people were known to favor 
independence. On the evening of July 4, 1776, the com- 
mittee of the whole, 1 that had been considering the Declara- 
tion, reported to the congress the draft that, had been agreed 
upon. This was then adopted in the congress by the unani- 
mous vote of twelve colonies. Five days later New York 
approved the Declaration, which thus became the first 
utterance of the United States of America. 

The events of the years immediately following the con- 
gress in New York led to a rapid development of opinion 
among the colonists. In this period the idea of separation 
from the mother country found positive expression; the 
formation of a permanent union among the colonies became 
a prominent object of popular ambition; and the establish- 
ment of an independent government appeared to many 
persons as quite possible. Two parties became clearly 
recognized. Those who wished the colonies to remain under 
the dominion of England were called Loyalists, Tories, and 
Friends of Government; those who opposed the policy of 
England, and looked forward to independence were called 
Whigs, Patriots, and Sons of Liberty. The culmination 
of this movement was the Declaration of Independence. It 
is worthy of note that, as the colonists advanced toward the 
position of an independent nation, their achievements were 
made in a significant order. First, they sought union, that 
they might be of one mind and have one policy in dealing 
with the mother country. In the second place, when union 
had been attained, it was in union that the Declaration of 
Independence was made. In the third place, it was as one 

1 See page 91, 



32 THE GOVERNMENT OF THE UNITED STATES 

body that they fought to win their independence, and to 
cause it to be recognized. 

Topics. — Indications of independence.— Parties and opinions 
respecting independence. — Attitude of congress. — The declaration 
before congress. — Approval by New York. 

References.— Frothingham, Rise of the Republic, 403-454; 
Hart, Actual Government, 49; Macy, Our Government, 37; Bancroft, 
History of the United States, ii, 85, 340, 528; iv, 160, 426; v, 548. 

18. The " Right " of Revolution. — At this point arises 
a general question relating to what is termed the "right" of 
revolution. In speaking of the transfer of sovereignty over 
the colonies from Great Britain to the colonies themselves, 
Cooley says: "The authority of the British crown over the 
colonies was rejecte v d, and a government created by the 
people of the colonies for themselves, and this afterward 
radically changed and reformed in the adoption of the 
Federal Constitution under the great and fundamental right 
of every people to change their institutions at will — in other 
words, under the right of revolution." 1 For a correct 
understanding of this statement it is to be noted that the 
colonies were not a people, nor even a nation; they were 
a part of the English nation and subject, like any other 
part, to the sovereign authority of that nation. The rights 
that are considered in strictly political discussion are such 
as are created by, and exist under, law; and the sovereign 
over the colonies had adopted no law creating the right of 
any part of the nation to secede. Under this meaning of the 
term there is clearly no right of revolution. But revolu- 
tions do happen, and through them independent nations 
sometimes come into existence; but there is no right of 
revolution except such a moral right as may be grounded on 
expediency or utility. The right under which the colonists 
acted was of this kind. The king "had refused his assent 

1 Constitutional Law, 25. 



UNION AND INDEPENDENCE 33 

to laws, the most wholesome and necessary for the public 
good," and had done a long list of injuries, as set forth in the 
Declaration of Independence, and was " unfit to be the ruler 
of a free people." In view of all these things, the colonists 
thought it expedient and useful to separate themselves from 
the authority which they had hitherto acknowledged as 
their sovereign superior. A nation has always the right to 
make changes in the form of its government. In its con- 
stitution it provides a method through which the legally 
constituted authorities may make the desired changes in 
accordance with a prescribed method, or it may authorize 
any part of its inhabitants to do this; but this action is not 
properly termed a revolution. A revolution is a movement 
involving changes in the government by methods not pre- 
scribed by law and not sanctioned by any right which the 
law has created. A revolution may be advantageous to the 
persons engaging in it and not involve any serious disad- 
vantage to those against whom it is made. In a case like 
this, where the advantages far outweigh any possible dis- 
advantages, it may perhaps be proper to affirm that a body 
of people carrying such a revolution to a successful issue 
possesses a moral right of revolution. 

Topics. — Cooley on "right" of revolution. — Meaning of term 
revolution. — Changes in government. — Methods of making changes. 

19. The Declaration of Independence. — With the pub- 
lication of this declaration, representatives of political socie- 
ties hitherto dependent assumed the powers of a sovereign. 
As a specific instance of the origin of sovereignty, it may be 
noted that here, in harmony with the general law, sover- 
eignty was acquired by a people, or a part of a people, by 
assuming it. The Declaration of Independence, adopted by 
a congress that was supported by the governments of the 
several colonies, was an announcement of a revolution, and 
became the basis of a new state. It announces that some- 



34 THE GOVERNMENT OF THE UNITED STATES 

times "it becomes necessary for one people to dissolve the 
political bands which have connected them with another"; 
and it is inferred from the action taken in this case that the 
determination of the time when it is necessary to dissolve 
these bands is left to the communities preparing to take this 
step. 

Among the statements which the makers of the Declara- 
tion considered as self-evident truths are the following : 

1. That all men are created equal. 

2. That all men are endowed with certain inalienable 
rights. 

3. That governments are instituted to secure these 
rights. 

4. That governments derive their just powers from the 
consent of the governed. 

5. That it is the right of a people to abolish any form of 
government whenever it becomes destructive of these ends; 
or whenever it evinces a design to bring the governed into 
submission to a despotism. 

6. That it is the right of a people to institute a new 
government, with such principles and with such an organ- 
ization as shall seem to it most likely to secure its safety 
and happiness. 

The bulk of the document is in the nature of a preamble; 
the declaration itself is contained in the final paragraph, and 
is as follows: 

" We, therefore, the representatives of the United States 
of America, in general congress assembled, appealing to the 
Supreme Judge of the world for the rectitude of our inten- 
tions, do, in the name, and by the authority of the good 
people of these colonies, solemnly publish and declare, That 
these united colonies are, and of right ought to be, free and 
independent States; that they are absolved from all alle- 
giance to the British crown, and that all political connection 
between them and the state of Great Britain is, and ought 



UNION AND INDEPENDENCE 35 

to be, totally dissolved; and that, as free and independent 
States, they have full power to levy war, conclude peace, 
contract alliances, establish commerce, and to do all other 
acts and things which independent States may of right do. 
And, for the support of this declaration, with a firm reliance 
on the protection of Divine Providence, we mutually pledge 
to each other our lives, our fortunes, and our sacred 
honor." 

This " declaration was not only the announcement of the 
birth of a people, but the establishment of a national govern- 
ment; a most imperfect one, it is true, but still a government 
in conformity with the limited constituent powers which 
each colony had conferred upon its delegates in congress. 
The war was no longer a civil war; Britain was become to 
the United States a foreign country. Every former subject 
of the British king in the thirteen colonies now owed primary 
allegiance to the dynasty of the people, and became a citizen 
of the new Republic; except in this, everything remained as 
before; every man retained his rights; the colonies did not 
dissolve into a state- of nature, nor did the new people 
undertake a social revolution. The management of the 
internal police and government was carefully reserved to 
the separate States, which could, each for itself, enter upon 
the career of domestic reforms. But the States which were 
henceforth independent of Britain were not independent of 
one another: the United States of America, presenting them- 
selves to mankind as one people, assumed powers over war, 
peace, foreign alliances, and commerce." 1 

Topics. — Origin of sovereignty. — Adoption of the Declaration 
of Independence. — Nature of the Declaration. — The "self-evident 
truths " expressed in it. — Character of final paragraph. 

1 Bancroft, History of the United States, iv, 452. Note that the 
word " people " is here used where the term "nation " would more cor- 
rectly express the idea to be conveyed. 



36 THE GOVERNMENT OF THE UNITED STATES 

References. — Bancroft, History of the United States, iv, 452; 
Charming, History of the United States, 203-206; McLaughlin 
History of the American Nation, 194-196; Friedenwald, The Decla- 
ration of Independence, 99-207 ; 262-279. 

20. The New Position.— The Declaration of Independ- 
ence, preceded by a union of the colonies and followed by a 
successful war, established a new nation. Allegiance to 
the sovereign of Great Britain was dissolved, and a new 
sovereign was coming into being. The change was not 
prescribed by law, but was revolutionary. The supreme 
power over the former British subjects in America had been 
held by the king, lords, and commons; by the act of in- 
dependence this power was assumed by some part or parts 
of the community thus set free. But one may not easily 
determine what part or parts became clothed with the 
supreme power, and thus became the sovereign in the new 
American nation. The political revolution was for many 
years in process; there was no constitution, no settled order 
of procedure, and no established hierarchy of institutions. 
Between the act of independence and the adoption of the 
Constitution there was no legal description of the holder of 
supreme power. These thirteen years were the years of 
transition from the established sovereignty of Great Britain 
to the dominion of the sovereign described in the Constitu- 
tion of the United States. The colonies had become united. 
In union they had won independence, and had won it for 
the whole people as one body. They had confirmed this 
independence by a treaty of peace made with the mother 
country in Paris, in 1783. A congress had been formed and 
maintained, and this was the only institution through which 
the will of the whole nation found expression. And this 
congress, that had raised an army and appointed a com- 
mander in chief, that was the source of all military power 
and all authority in general legislation, had many qualities 



UNION AND INDEPENDENCE 37 

of the legal sovereign. " Unconsciously to themselves the 
people of the United States were absorbed into a new na- 
tionality by the very fact of their combined resistance to 
Great Britain. They carried on war; they officered and 
maintained armies; they commissioned vessels of war; they 
borrowed money and issued evidences of debt therefor; 
they created prize courts; they acquired territory and de- 
termined what the nature of its civilization should be; they 
made treaties with foreign powers; and in many ways, both 
before and after the adoption of the Articles of Confedera- 
tion, they exercised the highest powers of sovereignty." 1 

Topics. — Process of forming the new nation. — Duration of the 
Revolution. — Congress as the sole national institution. 

References. — Bancroft, History of the United States, vi, 441- 
451 ; Frothingham, Rise of the Republic, 561-610. 

FOR ADVANCED STUDY 

The New England Confederation, 1643. — Preston, Docu- 
ments, 85-95; MacDonald, Select Charters, i, 94-101; Fiske, Begin- 
nings of New England, 155-160; Palfrey, History of New England, 
i, 623-634; Frothingham, Rise of the Republic, 33-71; Hart, Con- 
temporaries, i, 447-454. 

The Colonial Congress at Albany, 1754. — MacDonald, 
Select Charters, i, 253-257; Old South Leaflets, 9; Franklin, Auto- 
biography, 231-233; Frothingham, Rise of the Republic, 29, 131-151; 
Fiske, New France and New England, 279, 280; Hart, Contempo- 
raries, ii, 357-360; Bancroft, United States, ii, 385-388. 

The Continental Congress. — Frothingham, Rise of the Re- 
public, 359-391 ; Hildreth, United States, iii, 38-46 ; Bancroft, United 
States, iv, 23, 24, 30-36, 61-77; Sloane, The French War and The 
Revolution, 170-176; Hart, Contemporaries, ii, 434-441; Lecky, 
History of England, iii, 443-455; Morse, Adams, Chap. II; Hosmer, 
Adams, 307-321; J. Adams, Works, i, 149-164; ii, 365-400; Mac- 
Donald, Select Charters, i, 362-367. 

1 Miller, Lectures, 36, 37. 



38 THE GOVERNMENT OF THE UNITED STATES 

The Second Continental Congress. — MacDonaid, Select 
Charters, i, 374-385; Bancroft, United States, iv, 190-192, 199, 200, 
204-213; Morse, Adams, 87-100; Washington, Writings, ii, 476- 
493; Adams, Works, ii, 415-418; Lecky, History of England, iii 
465-472; Fiske, American Revolution, i, 132-136; Lodge, Washington, 
i, 131-133; Sloane, French War and the Revolution, 195-199; H. von 
Hoist, Constitutional Law, 6-12; Johnston, United States, 56, 57; 
Frothingham, Rise of the Republic, 419-428. 

The Declaration of Independence. — MacDonaid, Select 
Documents, ii, 1-6; Old South Leaflets, 3; Larned, Ready Reference; 
Frothingham, Rise of the Republic, 513, 532-558; Morse, Jefferson, 
32-40, and Adams, 124-129; Hildreth, United States, iii, 132-138; 
Bancroft, United States, iv, 112-125, 435-452; Friedenwald, The 
Declaration of Independence. 

The Treaty of Paris, September 3, 1783. — MacDonaid, 
Select Documents, i, 15-21 ; Lecky, History of England, iv, 218-232, 
243-255, 273-289; Morse, Franklin, 357-365; Bancroft, United 
States, v, 525-580; Channing and Hart, Guide to American History, 
303, 304. 

The Right of Revolution. — Cooley, Constitutional Law, 25, 
26; Hart, Actual Government, 37. 

Political Institutions of the Colonies. — See Channing 
and Hart, Guide to American History, 312-314. 

Committees of Correspondence and their Influence. — 

McLaughlin, History of the American Nation, 183; Sloane, The 
French War and the Revolution, 161, 162; Hart, Formation of the 
Union, 57. 

The Adoption of the Articles of Confederation. — Hart, 
Contemporaries, ii, 539-543; Fiske, The Critical Period, Chap. Ill; 
Walker, The Making of the Nation, 6; Hart, Formation of the 
Union, 93-95. 



CHAPTER III 

UNDER THE ARTICLES OF CONFEDERATION 

21. The Articles of Confederation. — The first important 
step toward the organization of a national government was 
the formation of the Continental Congress. The second 
step was the adoption of the Articles of Confederation. 
The Articles of Confederation were framed by the Congress 
and proposed to the legislatures of the several States. 
These bodies then considered and approved them, and 
authorized their delegates to ratify them in Congress. On 
July 9, 1778, the delegates of eight States signed a form of 
ratification that had been drawn up previously. These 
States were: New Hampshire, Massachusetts, Rhode Island, 
Connecticut, New York, Pennsylvania, Virginia, and South 
Carolina. The other States ratified the articles on the 
following dates: North Carolina, July 21, 1778; Georgia, 
July 24, 1778; New Jersey, November 26, 1778; Delaware, 
May 5, 1779; Maryland, March 1; 1781. Maryland had 
wished to withhold her ratification until Virginia and other 
States should surrender to the Confederation their claims 
to northwestern lands. The cession of these lands was, 
however, not completed and accepted until much later. 
With the ratification of Maryland, the Articles of Confedera- 
tion became the Constitution, or the fundamental law, of 
the new nation. 

The need of a general constitution was seen even before 
the adoption of the Declaration of Independence. On July 

39 



40 THE GOVERNMENT OF THE UNITED STATES 

21, 1775, Franklin submitted to Congress a draft of Articles 
of Confederation and Perpetual Union. This project was 
not adopted; but a year later, June 12, 1776, Congress 
appointed a committee of thirteen, one member from each 
colony, "to prepare and draft the form of a confederation 
to be entered into." This committee reported about a 
month after its appointment. During the following year 
the form it had drawn up was amended, and adopted by 
Congress, November 15, 1777. This was the form that was 
proposed to the legislatures and ultimately ratified by the 
delegates in Congress. The name of this nation was stated 
and adopted in the first Article. It was, " The United States 
of America." Since its formation, similar names have been 
adopted by other nations on this continent. The United 
States of Mexico, the United States of Colombia, the United 
States of Venezuela, and the United States of Brazil have 
apparently imitated the title of this nation. 

Under the Articles of Confederation each of the States 
in the Union retained " every power, jurisdiction, and right " 
which was not expressly delegated to Congress. A similar 
provision was embodied in Article 10 of amendments of the 
Constitution of 1787. According to this article of the Con- 
stitution, "the powers not delegated to the United States 
by the Constitution, nor prohibited by it to the States, are 
reserved to the States respectively, or to the people." One 
difference between these two fundamental laws, the Articles 
of Confederation and the Constitution, in this regard, was 
that less power was delegated to the United States by the 
Articles of Confederation than by the Constitution. This 
first union of the States was called a "league of friendship" 
"for their common defense, the security of their liberties, 
and their mutual and general welfare " (Article 3). Among 
the States there was to be freedom of trade and freedom 
of ingress and egress for persons (Article 4); and the free 
inhabitants of each State were "entitled to all privileges 



UNDER THE ARTICLES OF CONFEDERATION 41 

and immunities of free citizens in the several States" 
(Article 4). This provision helped to strengthen the sense 
of common nationality. 

The government established by the Articles of Confedera- 
tion was extremely simple in form. A single representative 
body, called the General Congress, held all the powers, 
executive, legislative, and judicial, that had been granted 
to the United States. The Congress was composed of dele- 
gates appointed annually by the States, in such manner 
as each State might direct. Each State might recall its 
delegates, or any of them, at any time within the year, and 
send others in their stead for the remainder of the year. 
No State could be represented by less than two delegates 
nor by more than seven; and no person could be a delegate 
for more than three years in any period of six years. No 
delegate could hold any office under the United States, to 
which was attached a salary or emolument of any kind. 
Each State maintained its delegates; and in determining 
questions in Congress each State had one vote, whatever 
the number of its delegates. All bills affecting international 
relations, money, and credit, or revenues for carrying on the 
Government, required the votes of at least nine States. The 
Congress met every year, the session beginning on the first 
Monday in November; and it might not adjourn for more 
than six months. It had authority to appoint such com- 
mittees and civil officers as might be necessary for managing 
the affairs of the United States. The Congress might 
appoint one of their number to preside, provided that no 
person should be allowed to serve in the office of president 
more than one year in any term of three years (Article 9). 
In the recess of Congress, the government was carried on 
by a "Committee of the States," consisting of one delegate 
from each State. The conduct of the several departments 
by committees soon made evident their inefficiency, and the 
necessity of individual heads of departments. 



42 THE GOVERNMENT OF THE I^TITED STATES 

Under the Articles of Confederation, the State could not 
enter into any treaty or alliance with a foreign power 
without the consent of Congress; it could not maintain a 
naval or a military force, except militia for the defense of 
the State and its trade; it could not engage in any war 
without the consent of Congress, unless its territory was 
actually invaded by enemies or was in imminent danger of 
invasion. In case a military force was raised by any State 
for common defense, the legislature of the State was em- 
powered to appoint all officers of, or under, the rank of 
colonel. In such a case, all expenses incurred for the 
common defense or general welfare, and allowed by Congress, 
were defrayed out of the common treasury, which was sup- 
plied by the several States in proportion to the value of 
their real estate. The taxes for raising the State's con- 
tribution to the general treasury were levied by authority 
of the State's legislature. 

The Congress was the sole important organ of the Con- 
federation. It alone had authority to deal with external 
relations; it was empowered to make war and peace; it 
could send and receive ambassadors; it could negotiate 
treaties and alliances; it was empowered to control captures 
and prizes made by the land or naval forces of the United 
States; and it could establish courts for the trial of piracies 
and other crimes committed on the high seas. The Con- 
gress was the final authority in all boundary disputes be- 
tween States, and in all controversies concerning land 
titles. It could control coinage, fix weights and measures, 
regulate trade with the Indians, establish and manage post 
offices, and govern and direct the land and naval forces. 
In carrying out its legitimate functions Congress was re- 
strained, and its practical power greatly curtailed, by the 
requirement of a two-thirds vote for adopting all important 
measures, and by the fact that the treasury of the Confedera- 
tion was supplied not by taxes imposed by Congress, but by 



UNDER THE ARTICLES OF CONFEDERATION 43 

contributions from taxes levied by the legislatures of the 
several States. The legislatures of the States, moreover, 
could control the commerce of the country. They could 
levy any import or export duties they thought advisable, 
provided they did not thereby interfere " with any treaties 
then proposed, or touch the property of the United States, 
or that of any other State. The United States had no 
power of taxation, direct or indirect." 

The Articles of Confederation had many weak points. 
The 'first was that the vote of nine States was required for 
making any important law. The second was the im- 
possibility of establishing a consistent national policy with 
respect to commerce. The third was the fact that the Gen- 
eral Government had no independent source of revenue, and 
consequently no independent means of enforcing its will. 
All its revenues were contributions by the States. There 
was the form of a national government, but the necessary 
powers were wanting. Congress could not act upon the 
individual citizens; it could reach them only through the 
States. It could make treaties with foreign powers, but it 
could not enforce them. It might demand soldiers from 
the States, but it could not coerce the States to accede to 
these demands. 

These elements of weakness were sufficient causes of the 
failure of the Articles of Confederation as the fundamental 
law of the new state. 

Topics. — First step toward organization of a national govern- 
ment. — Second step. — Making the Articles of Confederation. — 
Ratification by States. — Maryland's reason for delay. — Franklin's 
draft. — Formation of the draft that was adopted. — Power of States 
under Articles of Confederation. — How different from their powers 
under the Constitution. — Relation of States to one another. — Nature 
of the government established. — Delegates. — Voting. — Times of 
meeting. — Presiding officer. — Government between sessions. — Posi- 
tion of the State. — Powers of Congress under the Articles of Con- 



44 THE GOVERNMENT OP THE UNITED STATES 

federation. — Restrictions on powers of Congress. — Weak points in 
Articles of Confederation. 

References. — Curtis, Constitutional History of the United States, 
i, 94-103; Fiske, The Critical Period of American History, 93; Ar- 
ticles of Confederation; Bancroft, United States, v, 201-208; Fiske, 
Civil Government, 213-220; Hart, Actual Government, 49; Lalor, 
Cyclopaedia, i, 574; Macy, Our Government, 38; Miller, Lectures, 3; 
Frothingham, Rise of the Republic, 569-584. ' 

22. State Constitutions under the Articles of Confedera- 
tion. — After independence had been declared, it became 
necessary to reconstruct the governments of the States. 
The States were starting on -a new political career, with 
a new theory as to the source of supreme power. They 
could no longer make use of the idea that pow T er descended 
to them from the king; but they held that pow r er resided 
originally in the people, and that officers of government 
who exercised it derived it from the people. The accept- 
ance of this view was the most important part of the 
Revolution. Long before this time, it had been customary 
in England to elect some of the members of Parliament — 
namely, the members of the House of Commons; but, under 
the law, the king had the right of absolute veto, which was 
a sufficient indication that the supreme legal authority was 
not in the people. Through the Revolution the thirteen 
colonies had become thirteen States, and w r ere obliged to 
modify their constitutions and adapt them to their new 
position. The reforms of the State governments were 
undertaken on the recommendation of the General Congress. 
Provisional changes were made in the government of Massa- 
chusetts in July, 1775; in the government of New Hampshire 
in January, 1776; and in the government of South Carolina 
in March, 1776. The permanent new constitutions, or 
the constitutions w r ith their permanent modifications, were 
adopted in the several States as follows: In New Jersey, 
Delaware, Pennsylvania, Maryland, and North Carolina^ in 



UNDER THE ARTICLES OF CONFEDERATION 45 

1776; in Georgia and New York, in 1777; in South Carolina, 
in 1778; in Massachusetts, in 1780; in New Hampshire, in 
1784; and in Rhode Island, Connecticut, and Virginia, much 
later. 

Under the State constitutions, while the Articles of 
Confederation were in force, the age of twenty-one was 
everywhere required as a condition of voting. Residence 
in the town or district also was required, except in Virginia 
and South Carolina. In these States, "it was enough to 
own in the district or town a certain freehold or 'lot." : In 
Virginia, South Carolina, and Georgia only white men 
could vote; but in South Carolina the octoroon, although 
descended from a slave, enjoyed this privilege. The 
question of color was not raised in the other ten States. 
Any white inhabitant "of any mechanic trade" could vote 
in Georgia; but in each of the other States the possession of 
a certain amount of property was required. In Massa- 
chusetts it was an amount equivalent to $200; in Georgia, 
to $250. In some of the colonies membership in the Church 
had been required as a condition prerequisite for exercising 
political rights. But in the course of time this qualification 
was dropped, and the public affairs of the various groups 
were organized on a purely secular basis. 

Topics. — Need of reconstructing governments of States. — New 
source of power. — Source of governmental power in England. — 
Provisional and permanent changes in State constitutions. — Voting 
in States under Articles of Confederation. 

References. — Hinsdale, American Government, 79; Channing 
and Hart, Guide, 306-308. 

23. The State Legislatures. — The assemblies of the colo- 
nies remained as the lower houses of the legislatures of the 
States. Their times of meeting and periods of election were 
more definitely fixed, and a more equitable distribution 
of representation was established. In New England, the 



46 THE GOVERNMENT OF THE UNITED STATES 

towns continued to elect representatives; in Virginia, the 
counties and boroughs. In South Carolina the members 
of the assembly were elected for two years; in all other 
States they were elected for one year. 

Eleven of the States maintained legislatures of two 
houses. Pennsylvania and Georgia placed all legislative 
power in a single house. Pennsylvania was moved in this 
matter by the influence of Franklin. The senate as it 
existed in the other States had different terms. The term 
of election to the senate was one year, in six States; two 
years, in South Carolina; three years, in Delaware; four 
years, in New York and Virginia; and five years, in Mary- 
land. In New York and Virginia the senate renewed one- 
fourth of its members each year; in Delaware, one-third of its 
members each year. Maryland elected her senators by an 
indirect election once in five years, and left the members to 
fill any vacancy that might occur between the stated periods 
of election. 

Topics. — State legislatures under Articles of Confederation. — 
Bicameral system. — The State senates. 

References. — Channing and Hart, Guide, 306-308. 

24. The Governors of States. — Both direct and indirect 
elections were employed in choosing governors. In the New 
England States the people voted for the governor directly. 
In New York the governor was elected by owners of free- 
holds that were each worth at least $250. In Georgia, he 
was elected by representatives of the people; in Pennsyl- 
vania, by the council and the assembly voting together; 
and in the other six States, by a joint ballot by the two 
houses of the legislature. 

Certain property qualifications were required for gov- 
ernors, for senators, and for representatives, except in 
Pennsylvania. In New York the governor was required to 
be a freeholder. In Massachusetts he should have a free- 



UNDER THE ARTICLES OF CONFEDERATION 47 

hold worth about $3,300; in New Hampshire, a freehold 
worth about half this sum; in South Carolina, a plantation 
worth, including slaves, about $43,000. The governor was 
chosen in New York and Delaware for three years ; in South 
Carolina, for two years; and in all the other States, for one 
year. The Southern States placed restrictions on the reelec- 
tion of the governors; but in Massachusetts, Connecticut, 
and Rhode Island they were often reelected for a number 
of years in succession. In most of the States the governor 
was given no power of veto; but in Massachusetts he was 
given the limited veto that had been devised in New York 
and there placed in the hands of the council. A bill might 
be passed over the veto of the governor of Massachusetts, 
provided a majority of two-thirds of each house voted for 
it when presented after the veto. 

The spirit that animated the people of the new States 
was quite as noteworthy as the institutions they created. 
Their establishment of religious liberty and their determina- 
tion that the church should be separated from the state 
marked the beginning of a new course in social progress. 

Topics. — Methods of election. — Qualifications required of gov- 
ernors. — Terms of governors. — The veto. — Spirit of the people. — 
Religious liberty. 

References. — Hart, Actual Government, 27 ; McLaughlin, 
History of the American Nation, 54-59, 65. 

25. The Weakness of the General Government, and the 
Remedy. — The General Government under the Articles of 
Confederation had less power than the Continental Con- 
gress might have exercised before the adoption of these 
Articles. The Continental Congress, in its great under- 
taking, was practically a sovereign body. It was " possessed 
of such large, indefinite powers, that, upon principles of 
public necessity, it might have assumed, in a great emer- 
gency, to hold a direct relation to the internal concerns of 



48 THE GOVERNMENT OF THE UNITED STATES 

any colony." The Articles of Confederation had curtailed 
this power. The central authority could not touch the 
individual citizen, nor could "it act upon the internal 
concerns or conditions of a State." The central Govern- 
ment manifested its weakness, especially in three ways: 

1. In its attitude toward internal affairs, particularly 
toward popular disturbances in the several States. These 
disturbances showed some of the people mistaking them- 
selves for the whole people. Under this delusion, a minor- 
ity in Massachusetts, finding that the institutions bore 
heavily upon them, concluded that they were the people, 
and that they could set aside the institutions which the 
people had created. The citizens had apparently learned 
to desire liberty, but they had not learned to respect the 
will of the majority. The fears that were excited by these 
popular disturbances, especially by Shay's rebellion, made 
it evident that the liberty which had been won was en- 
dangered by the lack of authority. Out of this thought 
rose the demand for a more effective national government. 

2. In its inability to control the foreign affairs of the 
country, particularly the trade with foreign nations and 
the trade among the several States. The power to regulate 
trade was in the hands of the States, and was subject to the 
single restriction that the States should not levy imposts or 
duties that might interfere with the stipulations in any 
treaties made "in pursuance of any treaties already pro- 
posed by Congress to the courts of France and Spain." 

3. In its lack of authority to manage and dispose of 
public lands and to admit new States into the Union. 

Washington, as commander in chief of the Colonial 
Army, was in a position to see clearly the weakness of the 
organization provided by the Articles of Confederation and 
was persistent in his advocacy of a stronger central govern- 
ment. The Confederation appeared to him to be little 
more than the shadow without the substance, and Congress 



UNDER THE ARTICLES OF CONFEDERATION 49 

merely a nugatory body. Hamilton declared that the 
Confederation was "unequal to a vigorous prosecution of 
the war, or to the preservation of the Union in peace." 
An attempt on the part of the Confederation to coerce the 
States would probably have resulted in a -dissolution of the 
Union. The incapacity of the Government became more 
manifest from month to month; and, in view of its help- 
lessness, an increasing number of persons accepted the idea 
that a new constitution was needed to insure the welfare 
of the nation. In January, 1784, Washington wrote that 
an extension of Federal powers "would make us one of the 
most wealthy, happy, respectable, and powerful nations 
that ever inhabited the terrestrial globe. Without this, 
we shall soon be everything which is the direct reverse." 
"For my own part, although I am returned to, and am now 
mingled with, the class of private citizens, and like them 
must suffer all the evils of a tyranny, or of too great exten- 
sion of federal powers, I have no fears arising from this 
source, in my mind; but I have many, and powerful ones 
indeed, which predict the worst consequences from a half- 
starved, limping government, that appears to be always 
moving upon crutches and tottering at every step." 1 
Among the reasons for establishing a stronger central 
government, four were especially conspicuous: (1) To reg- 
ulate the foreign commerce of the country; (2) to control 
and colonize the public domain; (3) to provide independent 
means for acquiring a revenue; (4) to subject domestic 
trade to just and uniform regulations and to put an end to 
the tariff war among the States. Without adequate powers 
respecting these matters, the Confederation was falling 
into ruins. There seemed to be nothing before it but the 
prospect of speedy dissolution. The formation and adop- 
tion of a new fundamental law appeared to be necessary 

1 Washington to Harrison, Jan. 18, 1784. 



50 THE GOVERNMENT OF THE UNITED STATES 

to insure good government and the continuance of the 
Union. 

Topics.— Continental Congress before the Articles of Confedera- 
tion. — Weakness of the central Government respecting internal dis- 
turbances; respecting foreign affairs; respecting disposal of public 
lands.— Washington's view of its weakness.— Reasons for establish- 
ing stronger central government. 

References.— Fiske, Civil Government, 216-220; Miller, Lec- 
tures, 3-5, 21, 22; Articles of Confederation. 

26. The Constitutional Convention. — The full coopera- 
tion of the several colonies necessary to make a new con- 
stitution possible was reached only by a slow advance. In 
1785 commissioners from Maryland and Virginia met to 
regulate the navigation of Chesapeake Bay and other waters 
common to these two States. But it became evident that 
they could not reach the proposed object without the 
cooperation of the other States. This failure furnished an 
additional reason for a closer union. In January, 1786, 
the legislature of Virginia appointed eight commissioners 
to meet with the commissioners from other States to con- 
sider matters relating to the regulation of trade. The com- 
missioners were required to report to the several States a 
bill covering this subject, with the purpose of having it 
adopted by the States, thus providing for a common policy 
to be carried out by Congress. The proposed meeting was 
held in September, 1786, at Annapolis. Commissioners 
were present from New York, New Jersey, Pennsylvania, 
Delaware, and Virginia — five States. The Annapolis meet- 
ing went beyond its original purpose and recommended a 
general convention of the States, to be held in Philadelphia 
on the second Monday in May, 1787. The purpose of the 
Philadelphia meeting, as stated in the resolution recom- 
mending it, was "to take into consideration the situation of 
the United States, to devise such further provisions as shall 



UNDER THE ARTICLES OF CONFEDERATION 51 

appear to them necessary to render the Constitution of 
the Federal Government adequate to the exigencies of the 
Union, and to report such an act for that purpose to the 
United States in Congress assembled as, when agreed to by 
them, and afterward confirmed by the legislatures of every 
State, will effectually provide for the same." 

The Annapolis meeting sent reports of its action to the 
several States and to Congress. In February, 1787, Con- 
gress adopted the idea of a general convention, and em- 
bodied it in the following resolution: 

"That, in the opinion of Congress, it is expedient that 
on the second Monday in May next a convention of delegates, 
who shall have been appointed by the several States, be 
held at Philadelphia, for the sole and express purpose of 
revising the Articles of Confederation, and reporting to 
Congress and the several legislatures such alterations and 
provisions therein as shall, when agreed to in Congress and 
confirmed by the States, render the Federal Constitution 
adequate to the exigencies of government and the preserva- 
tion of the Union." 

All the States but Rhode Island acted on the resolution 
of Congress and sent delegates to the convention. There 
was no restriction on the number of delegates the several 
States could send; but two were necessary to entitle the 
State to vote. 

The convention which assembled in obedience to this 
call by Congress was organized in May, 1787. It elected 
George Washington president of the convention, and 
adopted the method of voting that had been used in Con- 
gress. It was the will of the convention that nothing 
spoken in the meetings should "be printed or otherwise 
published without leave." It was very early seen that 
the desired end could not be reached by simply amending 
the Articles of Confederation, but that an essentially new 
form of government must be provided. As a result of the 



52 THE GOVERNMENT OF THE UNITED STATES 

labors of the convention during the four months of its 
sessions, it sent to Congress in September the form, or 
draft, of a new constitution. The convention sent to Con- 
gress also resolutions recommending that the draft of the 
Constitution should be submitted to State conventions for 
their consideration and ratification. The resolutions trans- 
mitting the draft of the Constitution to Congress were as 
follows : 

"In Convention, Monday, September 1'7, 1787. 

"Resolved, That the preceding Constitution be laid be- 
fore the United States in Congress assembled, and that it 
is the opinion of this convention that it should afterward 
be submitted to a convention of delegates, chosen in each 
State by the people thereof, under the recommendation of 
its legislature, for their assent and ratification; and that 
each convention, assenting to and ratifying the same, 
should give notice thereof to the United States in Congress 
assembled. 

" Resolved, That it is the opinion of this convention that, 
as soon as the conventions of nine States shall have ratified 
this Constitution, the United States in Congress assembled 
should fix a day on which electors should be appointed by 
the States which shall have ratified the same, and a day on 
which the electors should assemble to vote for the President, 
and the time and place for commencing proceedings under 
this Constitution. That after such publication the electors 
should be appointed, and the senators and representatives 
elected; that the electors should meet on the day fixed 
for the election of the President, and should transmit their 
votes, certified, signed, sealed, and directed, as the Con- 
stitution requires, to the secretary of the United States in 
Congress assembled; that the senators and representatives 
should convene at the time and place assigned; that the 
senators should appoint a President of the Senate for the 
sole purpose of receiving, opening, and counting the votes 



UNDER THE ARTICLES OF CONFEDERATION 53 

for President; and that, after he shall be chosen, the Con- 
gress, together with the President, should, without delay, 
proceed to execute this Constitution. 

" By the unanimous order of the convention. 

"George Washington, President. 

"William Jackson, Secretary." 

Topics. — Maryland and Virginia commissioners meet, 1785. — 
Annapolis meeting, 1786. — Philadelphia meeting, 1787. — Resolu- 
tion by Congress, 1787. — Constitutional Convention organized, 1787- 
— Washington's part in the convention. — Duration and work of 
the convention. — Resolution submitting completed draft. 

References. — Bryce, American Commonwealth, i, 21-25; Fiske, 
Civil Government, 217; Hart, Actual Government, 50; Hinsdale, 
American Government, 87-106; Lalor, Cyclopaedia, i, 626-637; ii, 
672; Macy, Our Government, 38-41; Bancroft, United States, vi, 
Book III; Frothingham, Rise of the Republic, 587-610. 

27. The Adoption of the Constitution. — By the seventh 
article of the proposed Constitution the convention had 
agreed that the ratification of the conventions of nine 
States should be sufficient to establish the Constitution and 
make it valid for the States ratifying it. The first nine 
States ratified the Constitution on the following dates: 

Delaware, November 7, 1787; 

Pennsylvania, December 12, 1787; 

New Jersey, December 18, 1787; 

Georgia, January 2, 1788; 

, Connecticut, January 9, 1788; 

Massachusetts, February 6, 1788; 

Maryland, April 28, 1788; 

South Carolina, May 23, 1788; 

New Hampshire, June 21, 1788. 
With the adoption by New Hampshire, the form drawn 
up by the convention was established as the Constitution 
of the United States of America. The other States ratified 



54 THE GOVERNMENT OF THE UNITED STATES 

it a little later; Virginia, on June 26, 1788, and New York, 
on July 26, 1788. Information of the ratification by North 
Carolina and Rhode Island was not received by Congress 
until 1790. 1 

The adoption of the Constitution completed the Revolu- 
tion. A new nation had come into existence and organized 
for itself a national government. 

A new central government was formed by the adoption 
of the Constitution. This new Government was more in- 
dependent than that which had existed under the Articles 
of Confederation. It was not obliged to ask the several 
States for money with which to meet its expenses, for it 
could tax the people directly. It could reach individual 
citizens in many ways. It could arrest them for crime and 
bring them for trial before its courts; it could call them 
into the army and the navy. It could, moreover, declare 
war and make peace. It could regulate commerce with 
foreign nations, among the States, and with the Indian 
tribes. Besides the central Government there existed at 
this time also the governments of the States, the govern- 
ments of the counties, the governments of the towns and 
cities. These forms of government, with slight modifica- 
tions, have continued to the present. They are all popular 
governments; that is, the power which is exercised by their 
officers is derived from the people. If we examine them, 
we shall find that they are all representative governments. 
The officers are elected from the people by the people, and 
are elected for a definite and specified term. Under the 
Articles of Confederation, the States had united "for their 
common defense, the security of their liberties, and their 
mutual and general welfare." A somewhat more specific 
purpose of the new Government was set forth in the preamble 
to the Constitution. It was as follows: (1) To form a more 

1 The date of the ratification by North Carolina was November 21, 
1789; by Rhode Island, May 29, 1790. 



UNDER THE ARTICLES OF CONFEDERATION 55 

perfect union; (2) to establish justice; (3) to insure domestic 
tranquillity; (4) to provide for the common defense; (5) to 
promote the general welfare; (6) to secure the blessings of 
liberty to ourselves and our posterity. 

Topics. — Approval of nine States needed to make Constitution 
valid. — Dates of ratification. — Completion of the Revolution. — 
Character of the government provided for by the Constitution. — 
Specific purposes declared in the preamble. 

References. — Bryce, American Commonwealth, i, 25-28; 
Hinsdale, American Government, 106-117; Macy, Our Government, 
38-41; Miller, Lectures, 9-21; Bancroft, United States, vi, Book IV. 

FOR ADVANCED STUDY 

Preparation and Adoption of the Articles of Confeder- 
ation. — MacDonald, Select Documents, 6-15; Curtis, Constitutional 
History, i, 124-141; American Historical Association, 1894, 227-236; 
Fiske, The Critical Period, 55-63, 90-94; American History Leaflets, 
7, 20, 28; Old South Leaflets, 2; Hart, Introduction to Federal 
Government, 1-86. 

Weakness of the Confederation. — Madison, Letters, i, 320- 
328; The Federalist, No. 15, 21, 22; Fiske, The Critical Period, 94- 
105; McMaster, United States, i, 130-139; Lodge, Hamilton, 36-46; 
Hart, Contemporaries, iii, 120-122, 125-137, 177-182, 195-197. 

The Cession of Western Territory by the States Claim- 
ing It. — Hinsdale, Old Northwest, Chap. XI-XIII; Donaldson, The 
Public Domain, Chap. Ill; Roosevelt, The Winning of the West, iii, 
243-251; Fiske, The Critical Period, 187-196; King, Ohio, 161- 
173; Hart, Contemporaries, iii, 138-142; Madison, Letters, i, 136-140. 

The Government of the Northwest Territory. — The 
Ordinance of 1787, Old South Leaflets, 13; Larned, Ready Reference; 
MacDonald, Select Documents, 21-29; Hinsdale, Old Northwest, 
Chap. XV; Cutler, Manasseh Cutler, i, Chap. IV-XII; Winsor, 
Westward, Chap. XIV; North American Review (Poole), April, 1876; 
Drake, Ohio Valley States, 153-172; Dunn, Indiana, Chap. V; King, 
Ohio, Chap. VIII; Hart, Contemporaries, iii, 154-158; Donaldson, 
The Public Domain, 149-159. 



56 THE GOVERNMENT OF THE UNITED STATES 

The Calling of the Constitutional Convention. — Hunt, 
Life of James Madison, Chap. X-XIV; Bancroft, United States, vi, 
182-203; Fiske, The Critical Period, 212-222; McMaster, United 
States, i, 389-399; Gay, James Madison, 55-63; Curtis, Constitu- 
tional History, i, 340-368; Schouler, United States, i, 32-39. 

The Making of the Draft of the Constitution.— Elliot, 

Debates; Madison, Letters, i, 343-355; Washington, Writings, xi, 
128-156; Bancroft, United States, vi, 207-276, 292-367; Curtis, 
Constitutional History, i, 374-488; ii, 3-487; Federalist; H. Von 
Hoist, Constitutional Law, 16-24; Fiske, The Critical Period, 222- 
305; McMaster, i, 438-453; Hunt, Life of James Madison, Chap. 
XIII, XIV; Gay, James Madison, Chap. VII, VIII; Roosevelt, 
Morris, 133-165; Stille, Life and Times of John Dickinson, Chap. 
VII; Lodge, Hamilton, 57-65; Schouler, United States, i, 39-51; 
Hart, Contemporaries, iii, Chap. X; Old South Leaflets, 70. 

The Constitutional Convention of 1787. — Bancroft, United 
States, vi; Curtis, Constitutional History, i, 257-697; Hart, Forma- 
tion of the Union, Chap. VI; Walker, Making of the Nation, Chap. II; 
Hildreth, United States, iii, Chap. XLVII, XL VIII; Landon, 
Constitutional History, 76-124; American Academy of Political 
Science, Annals, ix, 380; Jameson, Essays in Constitutional History; 
Fisher, Evolution of the Constitution, Chap. VI ; Story, Commentaries, 
§§272-281; Hart, Contemporaries, iii, §§54-82; Hill, Liberty Docu- 
ments, Chap. XVII ; Elliot, Debates; Meigs, Growth of the Constitu- 
tion; Stevens, Sources of the Constitution. 

Different Opinions Respecting the Confederation and 
the Proposed Government. — Hosmer, Adams, 381-392; Roose- 
velt, Morris, 128-132; McMaster, United States, i, 356-389; Lodge, 
Hamilton, 50-53; Washington, Writings, x, 345, 346; xi, 1-3, 12, 
80-82; H. Von Hoist, Constitutional Law, 13, 14; Madison, Letters, 
i, 169-173, 195-198, 201, 202, 205-208, 229, 230. 

Opposition to the Proposed Constitution, and the 
Struggle to Secure its Adoption.— Elliot, Debates, i, 31S-338; 
Bancroft, United States, vi, 371-438, 452-462; Curtis, Constitutional 
History, i, 491-604 ; Fiske, The Critical Period, Chap. VII ; McMaster, 
United States, i, 454-501 ; Hunt, Life of James Madison, Chap. XV- 
XVII; Gay, James Madison, Chap. IX; Tyler, Henry, Chap. XVIII; 



UNDER THE ARTICLES OF CONFEDERATION 5f 

Hosmer, Adams, 392-401 ; Lodge, Hamilton, 65-80; Schouler, United 
States, i, 60-78 ; Hart, Contemporaries, hi, Chap. XI ; Johnston, Amer- 
ican Orations, i, 24-43; Ford, ed. Pamphlets, 1-23, 91-115, 272-275, 
277-322; Washington, Writings, xi, 183-186; H. von Hoist, Con- 
stitutional Law, 28. 

General View of the Formation of Constitutions. — 
Jameson, Constitutional Conventions; Morey, Genesis of a Written 
Constitution, Am. Acad. Pol. Sc, Annals, i, 529-557; American 
Historical Review, v, 467-490 ; Story, Commentaries, §§ 272-280, 
1826-1S31; Hinsdale, American Government, Chap. VII-X; Bryce, 
American Commonwealth, i, Chap. XXXI, XXXII. 



CHAPTER IV 

THE FEDERAL LEGISLATURE 

28. Congress. — Congress is composed of two houses, the 
Senate and the House of Representatives. This is in ac- 
cordance with the provision of the first section of Article 1 
of the Constitution, which affirms that "all legislative 
powers herein granted shall be vested in a Congress of the 
United States, which shall consist of a Senate and a House 
of Representatives." The President cooperates with the 
two houses of Congress in making laws. He is required to 
express his approval or disapproval of " every order, resolu- 
tion, or vote to which the concurrence of the Senate and 
House of Representatives may be necessary," except votes 
on the question of adjournment. An additional exception 
is that resolutions proposing amendments of the Constitu- 
tion, passed by both houses of Congress, do not require the 
assent of the President. Composed of two houses, the 
Congress has the form generally assumed by the legislatures 
of modern States. 

The bicameral organization of the Legislature is thought 
to be attended by certain advantages: (1) It prevents 
hasty, rash, and dangerous legislation by extending the 
period of deliberation, and by causing bills to be considered 
from the different points of view of two houses differently 
constituted. (2) It tends to check attempts to use the 
authority of the Legislature for personal or private ends. 
(3) It gives opportunity for a new and independent review 
58 



THE FEDERAL LEGISLATURE 59 

of all projected measures. (4) It allows a bill that has been 
passed in the heat of passion in one house, to be submitted 
to the cool judgment of another body. Washington is 
said to have replied to Jefferson's attack on the system of 
two houses by saying to Jefferson, as they sat at table, 
"You yourself have proved the excellence of two houses 
this very moment." "I?" said Jefferson; "how is that, 
General ? " " You have," replied Washington, " turned your 
hot tea from the cup into the saucer, to get it cool. It is 
the same thing we desire of the two houses." 

The two houses of Congress are representative bodies. 
This means that the members are chosen under a system of 
representation. Under this system the following conditions 
are observed: (1) The power of the voters is transferred 
to the representative; (2) the power is transferred for a 
definite period; (3) the electors or voters must not only 
give over the power, but they must also select the person 
to be the representative. 

The representative is not required to obey instructions 
given him by his constituents or to pledge himself to vote 
in accordance with their demands. The plan to instruct 
or pledge representatives, if carried out, would remove 
the decision on questions of legislation from the representa- 
tive body to the voters; and this would deprive the legis- 
lative assembly of its quality as a deliberative body and 
make it simply a means for registering decisions determined 
by the great body of the people having the right to vote. 

If one were to inquire into the origin of the bicameral 
system which is illustrated in Congress and in the State 
legislatures, he would be led back to the early history of 
our race for the type — to the time when there was a king 
or chief with limited power, a small council of nobles or of 
old men, and a general assembly of the whole people. This 
type has perpetuated itself in the later history of the race. 
The council survives in the modern House of Lords, or house 



60 THE GOVERNMENT OF THE UNITED STATES 

of nobles, or Senate; and the assembly survives in the lower 
house, under whatever name it may appear. In the course 
of history there have been temporary variations from this 
type. In Sweden, for a long time, there were four houses 
that made up the national legislature. These four legislative 
bodies represented four classes: the nobles, the clergy, the 
burgesses or the inhabitants of cities, and the peasants or 
persons living in the country. In England all of these 
classes existed; but the nobles and the clergy were repre- 
sented in the House of Lords, and the other two classes 
were represented in the House of Commons. Under Crom- 
well, England had for a short time a single house; France 
began her several republican governments in each case with 
only one national legislative body. Congress consisted of 
only one body under the Articles of Confederation. But 
everywhere there has been a tendency to the bicameral 
system, realizing the original type. In the persistence of 
the political instinct of our race is the fundamental ground 
for the similarities discovered among modern governments, 
and for the appearance of the bicameral legislature in 
practically all of them. 

Topics. — Form of congressional organization. — -Legislative 
power of the President.— Advantages of bicameral system. — 
Washington's illustration. — Character of a representative. — In- 
structing representatives.— The political instinct. 

References. — Dawes, How We Are Governed, 73; Ford, Ameri- 
can Citizen's Manual, Part I, 10; Hinsdale, American Government, 
144-147; Lalor, Cyclopaedia, i, 587; Freeman, General Sketch of 
History, 6; Crane and Moses, Politics, 68-81. 

29. The House of Representatives. — The House of Rep- 
resentatives is " composed of members chosen every second 
year by the people of the several States." The members 
of this body are said to represent the people; yet in their 
election the individuality of the States is recognized, since 



THE FEDERAL LEGISLATURE 61 

every congressional district is a subdivision of a State. The 
electors in each State are required to have the qualifica- 
tions requisite for electors of the most numerous branch 
of the State legislature. Members from different States 
are, therefore, elected under different rules of suffrage. In 
Rhode Island a property qualification is required. In 
Massachusetts, Connecticut, and California it is required 
that the elector shall be able to read the Constitution or other 
laws. The only limitation on the power of the State to 
determine who shall be an elector is that contained in the 
fifteenth amendment of the Constitution, which provides 
that " the right of citizens of the United States to vote shall 
not be denied or abridged by the United States, or by any 
State on account of race, color, or previous condition of 
servitude." V 

Topics. — Time of election. — Representation of the people. — 
Qualifications of representatives. — Qualifications of electors. — 
Fifteenth amendment. 

References. — Dawes, How We Are Governed, 74; Fiske, Civil 
Government, 220-232; Hinsdale, American Government, 147, 148, 
151; Lalor, Cyclopcedia, ii, 474; Macy, Our Government, 183. 

30. The Number and Apportionment of Representatives. 

—The number of members of the House of Representatives 
in the United States at its first meeting was fixed by the 
Constitution. It was provided that this number should 
not exceed one for every 30,000 inhabitants; and that, 
awaiting the first enumeration, which was required to be 
made "within three years after the first meeting of the 
Congress," the States might elect sixty-five members, dis- 
tributed as follows: New Hampshire, three; Massachusetts, 
eight; Rhode Island, one; Connecticut, five; New York, 
six; New Jersey, four; Pennsylvania, eight; Delaware, one; 
Maryland, six; Virginia, ten; North Carolina, five; South 
Carolina, five; and Georgia, three. With each successive 



62 THE GOVERNMENT OF THE UNITED STATES 

census a new ratio of representation has been adopted. 
The following tabular statement gives the different periods, 
the census on which the ratio of that period is based, the 
ratio, and the number of members : 



PERIOD. 


CENSUS. 


RATIO. 


NO. OF MEMBERS. 


1789-1793 


Determined by the Constitution. 


65 


1793-1803 


1790 


33,000 


105 


1803-1813 


1800 


33,000 


141 


1813-1823 


1810 


35,000 


181 


1823-1833 


1820 


40,000 


212 


1833-1843 


1830 


47,500 


240 


1843-1853 


1840 


70,680 


223 


1853-1863 


1850 


93,503 


234 


1863-1873 


1860 


127,941 


241 


1873-1883 


1870 


130,533 


292 


1883-1S93 


1880 


154,325 


332 


1893-1903 


1890 


173,901 


356 


1903-1913 


1900 


194,182 


386 



It is to be observed here that not only has the ratio 
increased from decade to decade, but the number of mem- 
bers also has greatly increased. The first five apportion- 
ments were made according to the population of the 
States, but no account was taken of the fractional re- 
mainders. Under the rule adopted in 1843, each State had 
as many representatives as the basis of the ratio, 70,680, 
was contained times in the population of the State, and one 
representative for the remainder over one-half of this 
number. Each State, whatever its population, should have 
at least one representative. But for this provision Dela- 
ware, Nebraska, Nevada, and Oregon would have had no 
representation in the House in 1873, since the population 
of each of those States was below the number fixed as the 
basis of the ratio. Any State coming into the Union after 
the number and apportionment of representatives has been 
determined shall be represented in accordance with the 
fixed ratio, but the representatives shall be in addition to 
the specified number. Numerous later changes have been 



THE FEDERAL LEGISLATURE 63 

made in the method of apportioning the representatives, 
but the fraction has continued to be considered. With 
the growth of the nation the representative has come to 
stand for an increasing body of persons. 

While negro slavery lasted in the South, the slaves were 
counted for three-fifths of their actual number in deter- 
mining the population of the State for purposes of appor- 
tioning representatives. If, for example, a State had a 
white population of 175,000 and a slave population of 
100,000, the State would be awarded a representation on 
the basis of a population of 175,000 plus three-fifths of 
100,000, or 60,000; or in all, a population of 235,000. With 
a ratio of one representative for each 33,000 of the in- 
habitants, such a State would send seven representatives to 
Congress. The constitutional provision in this matter was 
that " Representatives and direct taxes shall be appor- 
tioned among the several States which may be included 
within this Union, according to their respective numbers, 
which shall be determined by adding to the whole number 
of free persons, including those bound to service for a term 
of years, and excluding Indians not taxed, three-fifths of 
all other persons. " As the slaves had no vote, this provision 
gave the white people in the South a larger congressional 
representation than had the white people in the North. 
"The arrangement adopted by the Constitution was a 
matter of compromise and concession, confessedly unequal 
in its operation, but a necessary sacrifice to that spirit of 
conciliation which was indispensable to the union of States 
having great diversity of interests and physical condition 
and political institutions." 

Topics. — Original number of representatives. — Apportionment 
of these. — Increasing ratio. — -Increasing number of members. — 
Fractional remainders in the several States. — Negro slavery in the 
system of apportionment. — The constitutional provision establish- 
ing this system. 



64 THE GOVERNMENT OF THE UNITED STATES 

References. — Dawes, How We Are Governed, 75-78; Ford, 
American Citizen's Manual, 14, 15; Hart, Actual Government, 221- 
225; Macy, Our Government, 180-182; Story, On the Constitution, 
§§ 636-644; Bancroft, United States, vi, 264-269. 

31. Qualifications of Representatives. — A representative 
in the United States must have the following qualifications: 

1. He must be twenty-five years old. For the lower, or 
elective, house of the English Parliament it is required 
simply that the member shall not be a minor. 

2. The representative must have been for seven years 
a citizen of the United States. He may, therefore, be a 
naturalized foreigner. In England, however, a foreigner, 
though naturalized, cannot be a member of either house of 
Parliament. 

3. For the representative there is no property qualifica- 
tion and no religious test. 

4. The representative, when elected, must be an in- 
habitant of the State in which he is chosen. Also it is 
expected that he will live in the district in which he is 
chosen. But this, like other unwritten laws, is not always 
followed. The reason for this provision is the thought that 
a representative who resides in the district will better under- 
stand the peculiar wants of his constituents than one living 
in some other part of the State. Under this system too 
much stress has sometimes been laid on the character of 
the representative as a local agent. "Representatives," 
says Judge Cooley, "are chosen in States and districts; but 
when chosen they are legislators for the whole country, and 
are bound in all they do to regard the interest of the whole. 
Their own immediate constituents have no more right than 
the rest of the nation to address them through the press, to 
appeal to them by petition, or to have their local interests 
considered by them in legislation. They bring with them 
their knowledge of local wants, sentiments, and opinions, 



THE FEDERAL LEGISLATURE 65 

and may enlighten Congress respecting these, and thereby 
aid all the members to act wisely in matters which affect 
the whole country; but the moral obligation to consider 
the interest of one part of the country as much as that of 
another, and to legislate with a view to the best interests 
of all, is obligatory upon every member, and no one can 
be relieved from this obligation by instructions from any 
source. Moreover, the special fitness to legislate for all, 
which is required by the association, mutual information, 
and comparison of views of a legislative body, cannot be 
had by the constituency; and the advantages would be lost 
to legislation if the right of instruction were recognized." 1 
Actually, however, representatives and senators and 
members of State legislatures are elected with the very 
definite understanding that they are to work for the interests 
of their several districts or for the interests of their States; 
and their success is generally likely to be estimated by their 
constituents with reference to what they accomplish in this 
narrower sphere of their proper activity. 

Topics. — Qualifications of representatives. — The question of 
residence. — Functions and obligations of representatives. 

References. — Dawes, How We Are Governed, 80-82; Hinsdale, 
American Government, 148; Fiske, Civil Government, 221; Cooley, 
Constitutional Law, 41, 42. 

32. The Method and Period of Election. — It is required 
by law that representatives shall be elected by districts 
of contiguous territory equal in number to the number 
of representatives. This requirement was established by 
an act of Congress, passed June 25, 1842. 2 This was the 
first practical step on the part of Congress to control the 
election of its members. Further legislation to the same 
end was had in 1871, when by congressional act it was 

1 Cooley, Constitutional Law, 41, 42, 

2 See § 33. 



66 THE GOVERNMENT OF THE UNITED STATES 

provided that all votes for representatives in Congress 
should be by written or printed ballots. The next year, 
in 1872, the time for holding the elections was fixed for the 
Tuesday after the first Monday of November; and this pro- 
vision was made to apply throughout the Union and to go 
into effect in 1876. But before this date — namely, in 1875 
— States that had through their constitutions established 
a different date for voting for representatives in Congress 
were exempted from the operation of this law; and in 1899 
the use of the voting machine was made lawful, as well as 
the use of written or printed ballots. This action was taken 
under the constitutional provision which prescribed that 
"the times, places, and manner of holding elections for 
senators and representatives shall be prescribed in each 
State by the legislature thereof; but the Congress may at 
any time by law make or alter such regulations, except as tp 
the places of choosing senators." 1 The exception concerning 
the places of choosing senators was inserted because it was 
not thought desirable that the Congress should have the 
right to determine where the State legislatures should meet. 
The representatives are elected for two years. Although 
elected in November, they do not meet until December 
of the following year, unless summoned to an extra session. 
This arrangement gives the newly elected representative 
opportunity and incentive to become familiar with the t 
details of procedure in the House and with the methods of 
acquiring in the executive departments and elsewhere, the 
special information which he will need from time to time in 
his legislative work. On the other hand, if he is elected as 
the champion of an idea or policy, in which his constituents 
are especially interested, he will have no opportunity for a 
year after his election to advocate that policy; and in the 
meantime the people thus interested are powerless to in- 

See § 37. 



THE FEDERAL LEGISLATURE 67 

tervene by legislation in matters that vitally concern them. 
But it may, perhaps, still be urged that any cause or policy 
that is not of sufficient importance to keep itself alive for 
more than a year is likely to partake of the nature of a 
popular whim, and ought not to be represented in permanent 
legislation. The government is not formed to give im- 
mediate expression to gusts of popular passion, but to 
embody in laws, and carry out executively, the mature and 
abiding wishes of the nation. 

Only eleven extra sessions were held in the first one 
hundred and fifteen years under the Constitution. As the 
representative's term is only half as long as that for which 
the President' is elected, the people have an opportunity 
to indicate their views on important phases of the Presi- 
dent's policy in the middle of his administration. "When 
vacancies happen in the representation from any State, 
the executive authority thereof shall issue writs of election 
to fill such vacancies." 1 The governor of the State has 
no power to fill such vacancy by appointment. Formerly, 
in some of the States, a majority of all the votes cast was 
necessary for an election; but since 1894 only a plurality 
has been required in all States. The short term of two years 
for which representatives are elected, and the failure of 
many of them to secure reelection more than once or twice, 
renders the House less effective than it would be if the 
members generally served for longer periods; for by longer 
service they would become familiar with the necessary 
methods of legislation, and thus more useful both to their 
constituents and to the nation as a whole. 

Topics. — Congressional districts. — Steps toward control of 
elections by Congress. — Constitutional authority for this action. — 
Period between election and meeting of representatives. — Advan- 
tages and disadvantages of short term. — Vacancies in the House. 

1 Constitution, Art. I, § 2. 



68 THE GOVERNMENT OF THE UNITED STATES 

References. — Bryce, American Commonwealth, i, 121-137; 
Dawes, How We Are Governed, 78; Ford, American Citizen's Manual, 
Part I, 15-17; Hinsdale, American Government, 155-159, 164-166. 

33. Gerrymander. — Before 1842 the representatives from 
any State might be elected by a general ticket of the whole 
State, the voters in all parts of the State voting for the 
whole list of persdns to be elected. Since that date the sev- 
eral representatives have been elected from congressional 
districts. There is a conspicuous exception to this rule. 
After a new census it becomes necessary to make a new 
apportionment of the representation. If a State under a 
new apportionment act is allotted an increase in the number 
of its representatives, and the congressional election occurs 
before the new districts have been formed, the additional 
member or members are chosen by voters from all parts 
of the State. They are elected on what is known as a 
general ticket. They are called " congressmen at large." 
It is sometimes said that election by general ticket is likely 
to secure a better class of officers than election in small 
districts. The ground of this opinion is found in the fact 
that in order to attract the approving attention of a whole 
State or of a very large district, stronger qualities are re- 
quired than would be needed to bring one prominently 
before the inhabitants of a small district. On the other 
hand, in a very large district the individual voter can know 
only imperfectly the candidate for whom or against whom 
he is expected to vote. He is obliged to regard the nomi- 
nation by his party convention as a guarantee that the 
candidate is worthy of his support. This arrangement, 
however, throws upon the party committee, or party 
managers, a greater power than it was originally intended 
any such persons should exercise. 

When members of the House of Representatives are 
elected, each in his individual district, the party in power 



70 THE GOVERNMENT OF THE UNITED STATES 

in a State, on redis trie ting the State, is moved to lay out 
the districts in such a way as to insure for itself the election 
of the largest possible number of congressmen. The method 
that has sometimes been employed to reach this end is to 
draw the lines of district boundaries in such a way as to 
make majorities for the party in charge of redistricting in 
as many districts as possible, but to make these majorities as 
small as may be safely done, and to make majorities for the 
opposing party in as few districts as possible, but to make 
them as large as possible. This arrangement has caused 
the party in power to waste the fewest votes possible, and 
the opposite party the most possible; for all votes given in 
any district over the number necessary to make a safe 
majority are thrown away. If the region where these 
surplus voters mainly reside can be added to another dis- 
trict, where they are needed to make a majority, another 
representative is gained for the party interested in making 
the change. In attempting to accomplish this purpose 
districts have sometimes been made very irregular in shape, 
as may be seen by a glance at' the outlines of the congres- 
sional districts of South Carolina. The light, broken lines 
represent the boundaries of counties; the heavy, solid lines, 
the boundaries of the congressional districts. 

The trick was invented in Virginia, and was there ap-, 
plied for the purpose of preventing the election of James 
Madison to the first Congress. It was later introduced into 
Massachusetts. Under Governor Gerry it was applied to 
secure the largest possible number of State senators for the 
party to which he belonged. A number of towns that were 
brought together into one district made a strange figure, 
which, through a combination of part of the word sala- 
mander with the name of Gerry, was designated " Gerry- 
mander." The terms gerrymander and gerrymandering have 
remained in the language of American politics; and, un- 
fortunately, the practice designated also has remained. 



THE FEDERAL LEGISLATURE 71 

Topics. — Election by general ticket. — Aim of party in power in 
redistricting the State. — Methods sometimes employed to accom- 
plish its purpose. — Origin and name of gerrymandering. 

References. — Bryce, American Commonwealth, i, 121, note; 
Fiske, Civil Government, 224; Hart, Actual Government, 222; Hins- 
dale, American Government, 166; Lalor, Cyclopaedia, ii, 367. 

34. The Senate. — The Congress under the Articles of 
Confederation consisted of only one house. In this body 
a certain equality among the States was maintained, since 
each State, whatever the number of its delegates to the 
Congress, had one vote. Now each State has two votes 
in the Senate. It may therefore be divided against itself, 
giving its two votes on opposite sides of a given question. 
This equal representation of the States is fixed by the 
Constitution, which declares that "no State, without its 
consent, shall be deprived of its equal suffrage in the 
Senate." 

The special purposes for which the Senate exists have 
been set forth as followsT 

" To conciliate the spirit of independence in the several 
States, by giving each State, however small, equal repre- 
sentation with every other, however large, in one branch of 
the national Government. 

" To create a council qualified, by its moderate size and 
the experience of its members, to advise and check the 
President in the exercise of his powers of appointing to 
office and concluding treaties. 

"To restrain the impetuosity and fickleness of the 
popular house, and so guard against the effects of gusts of 
passion or sudden changes of opinion in the people. 

"To provide a body of men whose greater experience, 
longer term of membership, and comparative independence 
of popular election would make them an element of stability 
in the government of the nation, enabling it to maintain its 



72 THE GOVERNMENT OF THE UNITED STATED 

character in the eyes of foreign states, and to preserve a 
continuity of policy at home and abroad. 

"To establish a court proper for the trial of impeach- 
ments, a remedy deemed necessary to prevent abuse of 
power by the executive." 

Topics. — Differences between the Congress under the Articles of 
Confederation and under the Constitution. — Purposes of the Senate. 

References. — Bryce, American Commonwealth, i, 108; Wilson, 
Congressional Government, Chap. IV; Willoughby, Rights and Duties 
of American Citizenship, 166, 167. 

35. The Number, Classification, and Terms of Senators. 

— The senatorial term is six years. In order that the 
Senate might be a permanent body, it was provided that 
the first senators elected should be divided as equally as 
might be into three classes. In the words of the Constitu- 
tion, "the seats of the senators of the first class shall be 
vacated at the expiration of the second }^ear, of the second 
class at the expiration of the fourth year, and of the third class 
at the expiration of the sixth year, so that one-third may 
be chosen every second year; and if vacancies happen, 
by resignation or otherwise, during the recess of the legis- 
lature of any State, the executive thereof may make tem- 
porary appointments until the next meeting of the legis- 
lature, which shall then fill such vacancies." But after the 
legislature has had an opportunity to elect a senator and 
failed to do it, the governor cannot fill the vacancy by 
appointment. If an appointment were made under these 
circumstances, the Senate would refuse to admit, the per- 
son appointed. In making the classes originally, no two 
senators from one State were put into the same class; and 
the term for which each class should serve was determined 
by lot. Senators from new States are assigned to one or 
another of these classes; consequently, the first senators 
from new States serve unequal periods. One may fall into 



THE FEDERAL LEGISLATURE 73 

the class of senators just elected, and have nearly or quite 
the full term; the other may be put into the class with those 
whose terms are about to expire, and thus have only a very 
brief period of service. 

Topics. — Provision for making the Senate a permanent body. 
■ — Filling vacancies. — Senators from new States. 

References. — Bryce, American Commonwealth, i, 92-120; 
Dawes, How We Are Governed, 82-84; Fiske, Civil Government, 223; 
Hart, Actual Government, 217. 

36. Qualifications of Senators. — To be a senator one 
must have the following qualifications: (1) He must be 
thirty years old.; (2) he must have been a citizen nine years; 
(3) he must be an inhabitant of the State from which he is 
chosen. It was designed originally that the Senate should 
be composed of men of superior ability and large experience 
in legislative and administrative affairs. In more recent 
years many very rich men, without knowledge or instructive 
political experience have asked to be elected senators, and 
their requests in some cases have been granted. 1 

Topics. — Qualifications of senators. — Original design respecting 
senators. — Is wealth also a qualification? 

References. — Dawes, Hoiv We Are Governed, 88; Fiske, Civil 
Government, 223; Hart, Actual Government, 220; Hinsdale, Ameri- 
can Government, 162. 

37. Method of Election. — Respecting the election of 
senators, the Constitution provides simply that they shall 

1 " The election of the senators by the State legislatures has given 
rich nonentities exceptional facilities for obtaining seats in the Senate, 
if not by direct corruption, at all events through the party organization 
which they get hold of by their liberal contributions to the party. The 
electors of a whole State cannot be bought, of course; but if the organ- 
ization adopts these millionaires as regular candidates for the popular 
election, will not the final result be the same?" — Ostrogorski, Democracy 
and the Organization of Political Parties, ii, 537. 



74 THE GOVERNMENT OF THE UNITED STATES 

be chosen by the legislature of the State. The manner 
of electing was for some time determined by the State 
itself. Under this freedom about half of the States elected 
senators by a concurrent vote of both, houses, and the 
other States required the senators to be voted for in an 
assembly composed of the two houses. On July 25, 1866, 
Congress, by a statute, prescribed a method to be ob- 
served in all the States. Under this law the "election 
shall be conducted in the following manner: Each house 
shall openly, by a viva voce vote of each member present, 
name one person for senator in Congress from such State, 
and the name of the person so voted for, who received a 
majority of the whole number of votes cast in each house, 
shall be entered on the journal of that house by the clerk 
or secretary thereof; and if either house fails to give such 
majority to any person on that day, the fact shall be entered 
on the journal. At twelve o'clock, meridian, on the day 
following that on which proceedings are required to take 
place as aforesaid, the members of the two houses shall 
convene in joint assembly, and the journal of each house 
shall then be read; and if the same person has received a 
majority of all the votes in each house, he shall be declared 
duly elected senator. But if the same person has not 
received a majority of the votes in each house, or if either 
house has failed to take proceedings as required by this 
section, the joint assembly shall then proceed to choose, 
by a viva voce vote of each member present, a person for 
senator; and the person who receives a majority of all the 
votes of the joint assembly, a majority of all the members 
elected to both houses being present and voting, shall be 
declared duly elected. If no person receives such a majority 
on the first day, the joint assembly shall meet at twelve 
o'clock, meridian, of each succeeding day during the session 
of the legislature, and shall take at least one vote, until 
a senator is elected." This process by which an elective 



THE FEDERAL LEGISLATURE 75 

body, like a legislature, chooses an officer, as in the case of 
electing a senator, is called an indirect election. It is 
distinguished from a direct election, for in a direct election 
the voters vote immediately for the person they wish to 
choose. This method of choosing the senators has called 
forth favorable opinions from foreign critics; but the 
voters of the United States have not been constantly of 
one mind concerning its merit. There were provided, 
through the Constitution, only two important occasions for 
resorting to indirect election: one, in the election of the 
President; another, in the election of senators. In this 
respect the United States stands in strong contrast with 
some of the Spanish-American republics, where indirect 
election is more extensively used. The original method of 
electing the President has been dropped, and several at- 
tempts have been made to cause the senators to be chosen 
by the direct vote of the people. These attempts have 
taken the form of proposals to amend the Constitution of 
the United States. The proposal is "that so much of Sec- 
tion 3, Article 1, of the Constitution of the United States 
as provides that the senators of the United States shall be 
chosen by the legislatures thereof, shall be amended so that 
the same shall read as follows : ' The Senate of the United 
States shall be composed of two senators from each State, 
to be chosen by the vote of the qualified electors in said 
States respectively, and at such time as shall be determined 
by act of Congress.'" Propositions like this have been 
much discussed and vigorously urged in the last few years. 
The plan to have United States senators elected directly 
by the whole body of voters is supported especially by 
two classes of persons: (1) Those who believe that progress 
toward good government consists in bringing all govern- 
mental affairs as fully into the hands of the people as pos- 
sible; (2) those who believe that the election of senators 
by the legislature offers facilities for corruption that would 



76 THE GOVERNMENT OF THE UNITED STATES 

not be presented by a direct ejection, and that to make the 
change proposed would render this phase of political life 
purer. A step away from free indirect election is some- 
times taken by having each State convention announce the 
candidate of the party. This was done by the Republican 
Convention of Illinois, in 1858, when it was announced that 
if the next legislature should have a majority of Republicans, 
Abraham Lincoln would be elected senator. A similar 
announcement was made by the Democrats in favor of 
Stephen A. Douglas. 

Topics. — Election of senators.— Method prescribed by Con- 
gress, July 25, 1866. — Direct and indirect elections. — Indirect elec- 
tion in the United States. 

References. — Hinsdale, American Government, 160; Lalor, Cy- 
clopaedia, iii, 702; Wilson, Congressional Government, 193-241; Re- 
vised Statutes of the United States, § 15. 

38. Meetings of Congress. — The time for the meeting 
of Congress is fixed by the Constitution in the provision 
that "the Congress shall assemble at least once in every 
year; and such meeting shall be on the first Monday in 
December, unless they shall by law appoint a different day." 
Under this provision each Congress holds two regular ses- 
sions. The two regular sessions may be known as the long 
and the short sessions. The former begins on the first Mon- 
day in December, and continues into the following sum- 
mer. The latter, beginning on the first Monday in December 
of the year in which the first session closes, ends at noon 
on the fourth of March. Prior to 1853 this session ended at 
midnight, March 3; and at the present time all business 
transacted between that time and noon of the following day 
is recorded as of the third of March. Under an act of Jan- 
uary 22, 1867, requiring each new Congress to meet " at 
twelve o'clock, meridian, on the fourth day of March, the 
day on which the term begins for which Congress is elected," 



THE FEDERAL LEGISLATURE 77 

each Congress held three sessions. The first session began 
March 4; the second, on the first Monday in December; and 
the third, on the first Monday in December of the following 
year. This law was later repealed. The forty-second Con- 
gress, which ended March 3, 1873, was the last whose meet- 
ings were determined by it. In this connection the distinc- 
tion between a congress and a session should be kept in 
mind. A congress, as the forty-seventh, is the whole body 
of representatives and senators taken for the period of two 
years for which the representatives are elected. The session 
is the series of meetings extending from the first Monday 
in December to the time of adjournment in the following 
spring or summer. A new Congress is elected every two 
years. Its regular sessions begin on the first Monday in 
December of each year. It may be convened in extra 
session by the President. 

An adjournment of Congress is had on motion. But 
"neither house, during the session of Congress, shall, without 
the consent of the other, adjourn for more than three days, 
nor to any other place than that in which the two houses 
shall be sitting." A motion to adjourn takes precedence 
of all other motions and cannot be amended or debated. 

Either the Senate or the House of Representatives may 
be convened separately. But, practically, there appears to 
be no reason for calling the House without the Senate. On 
the other hand, for considering treaties and for confirming 
appointments to office, there may be need of calling a meet- 
ing of the Senate without the House. 

Congress has met in three cities: from 1789 to 1791, in 
New York; from 1791 to 1800, in Philadelphia; since 1800, 
in Washington. The building in which the two houses meet 
at present is called the Capitol, the Senate occupying the 
north wing, and the House the south wing. 

The houses of Congress determine at what hour of the 
day the meetings shall begin. They adjourn whenever they 



78 THE GOVERNMENT OF THE UNITED STATES 

see fit. Ordinarily they meet at noon, and the meeting 
usually lasts four or five hours. The houses also determine 
on what days meetings shall be held. Sometimes meetings 
are held in the evening, and on rare occasions the meetings 
are continued all night. The all-night meetings have not 
been found favorable for the transaction of important busi- 
ness. The ordinary meetings are public; but an " executive 
session," that is to say, a secret session, is held whenever 
the majority of the house by vote expresses a desire for such 
a meeting. Ordinarily, when questions of general interest 
are before Congress, the business of the houses is carried on 
in the presence of a large number of visitors. 

Topics. — Time for the meeting of Congress. — Law of 1867. — 
A congress and a session. — Method of convening Congress. — Ad- 
journment. — Reason for convening one house without the other.— 
Where Congress has met. — "Executive session." 

References. — Bryce, American Commonwealth, Chap. XIX; 
Dawes, How We Are Governed, 89-93 ; Fiske, Civil Government, 226 ; 
Hart, Actual Government, 226, 237-239; Hinsdale, American Govern- 
ment, 168; Macy, Our Government, 183. 

39. Contested Elections. — When a person is elected to 
be a member of the House of Representatives or of the 
Senate, the governor of his State issues to him a certificate 
of election, which is evidence that he is entitled to a seat in 
the house named in the certificate. The evidence is, how- 
ever, not conclusive, for the Constitution provides that 
"each house shall be the judge of the elections, returns, 
and qualifications of its own members"; and in acting 
under this provision each house maintains a committee 
on elections, and to this committee all contested cases are 
referred. Having considered these cases and taken such 
additional evidence as may be had or may be desired con- 
cerning them, the committee makes a report to the house, 
and the house then by vete renders its decision; and from 



THE FEDERAL LEGISLATURE 79 

this decision there is no appeal. In a contest of this kind, 
Congress makes a certain allowance to the constituents to 
cover the expenses of the case; and each contestant is 
likely to receive the full support of the party to which he 
belongs. 

The power to render a final decision on the election of 
its members is exercised almost universally by legislative 
bodies. When the English Parliament was struggling to 
free itself from royal control, the possession of this power 
was necessary to success. Without it the king might have 
filled the House of Commons with his partisans, and thus 
kept Parliament dependent on his will. Like the control of 
the purse, it furnished a point of advantage, which was 
seized and used to establish parliamentary independence. 
The examination and settlement of questions concerning 
the election of its members having become a recognized 
feature of English parliamentary procedure, it was copied by 
other legislative bodies, as many other points of English 
parliamentary law were copied. It was copied, moreover, 
in many places where the circumstances of its origin did not 
exist. This was true of the United States. There was no 
reason here to suppose that, without the power to decide 
cases of disputed elections, any other department would 
curtail the constitutional independence of the legislature. 
The question to be decided is a question of evidence, de- 
manding a judicial investigation and decision; and there 
appears to be no other institution as well fitted to render 
such a decision as a court of law. At present all cases 
of contested elections for the House of Commons are 
tried by the common-law judges. This reform was made 
in 1867. 

Topics. — Certificate of election. — Method of house's action on 
the evidence that a person has been elected. — Reason for this power 
in House of Commons. — Reason for its appearance in the United 
States. — Change in England. 



80 THE GOVERNMENT OF THE UNITED STATES 

References. — Dawes, How We Are Governed, 86; Ford, Ameri- 
can Citizen's Manual, 19; Hart, Actual Government, 220; Hinsdale, 
American Government, 176; Miller, Lectures, 193. 

40. Members of Congress. — Members are persons who 
hold certificates of election from the proper authorities ol 
their respective States, whose right to seats in one house 
or the other is acknowledged by the house itself, and who 
have taken the prescribed oath of office. The attendance 
of members is presumed. The Constitution authorizes less 
than a quorum to compel absentees to attend. Absence of 
any member without leave is prohibited by the rules of the 
house to which he belongs. The members are exempt from 
arrest during their attendance at sessions and in their going 
to and returning from them, except when they are charged 
with treason, felony, or breach of the peace. The reason 
of this exemption is found not in a desire to extend special 
favors to members of Congress, but in a design to prevent 
interference with the work of the national Legislature. 
But for this privilege, members, in case of closely contested 
questions, might be arrested on false and absurd charges, 
and temporarily withheld from performing their proper 
legislative functions, if certain persons were interested in 
keeping them from voting. 

The territorial delegates are persons elected to Congress 
by a territory. They are sometimes elected by the terri- 
torial legislature and sometimes by the people. They have 
seats in the House of Representatives and may take part 
in the discussion of all matters relating to their territory, 
but they may not vote. 

Topics. — Description of members. — Attendance. — Exemption 
from arrest. — Purpose of this exemption.- — Territorial delegates. 

References. — Dawes, How We Are Governed, 96, 97; Ford, 
American Citizen's Manual, 20, 21; Hart, Actual Government, 227- 
231 ; Hinsdale, American Government, 184, 185, 



THE FEDERAL LEGISLATURE 81 

41. Quorum. — A quorum is the number of members of a 
legislature or a deliberative body that is necessary for the 
legal transaction of business. In a popular government 
it is important that the quorum of a legislative body should 
be large, in order that no measure may be lawfully ap- 
proved or rejected without the knowledge and cooperation 
of the bulk of the members. With respect to this matter 
Congress shows a wide departure from the law of the Eng- 
lish Parliament. The House of Commons with a mem- 
bership of 670, has a quorum of forty; and the House 
of Lords, with almost as many members, has a quorum of 
three. The quorum of each house of Congress was fixed by 
the Constitution in the provision that "a majority of each 
shall constitute a quorum to do business, but a smaller 
number may adjourn from day to day, and may be author- 
ized to compel the attendance of absent members in such 
manner and under such penalties as each house may pro- 
vide." A similar rule applied to the meetings of the Con- 
gress under the Articles of Confederation, except that the 
Continental Congress could not compel the attendance of 
absent members. In fact, a State might recall her delegates 
and thus prevent the transaction of business. A majority 
quorum is also required in the State legislatures. 

The rule relating to the number of the quorum having 
been established, it became important to determine what 
members should be counted for this purpose. Formerly, a 
member refraining from voting on a question, although 
present, was considered as not forming a part of the neces- 
sary quorum for that occasion. Under this rule the mem- 
bers of the opposition might refuse to vote, and thus prevent 
action, unless the dominant party was able to assemble 
of its members a number at least equal to a majority of all 
the members of the house. A member might take part in 
the debate and then refuse to vote, and by this refusal 
become constructively absent although actually present. 



82 THE GOVERNMENT OF THE UNITED STATES 

Whenever the dominant party had only a small majority, 
the minority in this way might carry on a very effective 
course of filibustering and delay legislative action. In the 
fifty-first Congress the speaker of the House of Represent- 
atives departed from custom and counted for a quorum all 
members actually present whether they had voted on the 
pending question or not. Laws passed under this inter- 
pretation of the quorum have been found by the Supreme 
Court to be valid, and the practice thus instituted is likely 
to become a permanent feature of congressional procedure. 

Topics. — Definition of quorum. — Importance of large quorum. — 
Quorum in Congress compared with that of English Parliament. — 
Members to be counted in quorum. 

References. — Dawes, How We Are Governed, 137; Hinsdale, 
American Government, 177. 

42. Compensation of Members. — The policy of not pay- 
ing the members of the national legislature, which at pres- 
ent prevails in England, makes it impossible for a poor 
man, however marked his ability as a legislator, to hold the 
position of a member, unless some person or persons can 
be found who may be willing to undertake to pay him a 
salary or to meet his expenses during the term of his service. 
This policy was considered inconsistent with the funda- 
mental ideas of the Government of the United States. There 
were also grave objections to having the members paid by 
the constituents, as the members of the House of Commons 
were paid prior to 1660. The project to leave the payment 
of members of Congress to the States from which they were 
elected also failed to receive the approval of the Constitu- 
tional Convention. It was feared that if the members were 
left dependent on the States for their compensation, it 
would be impossible to establish a stable government. It 
was therefore determined that the members of Congress — 
the senators as well as the representatives — should be paid, 



THE FEDERAL LEGISLATURE 83 

and that the payment should be made from the funds of the 
Federal Government, the amount to be fixed by statute. 
The amounts actually established by law have varied from 
time to time. At first the members of Congress were paid $6 a 
day, with $6 for every twenty miles of travel. Besides his pay 
as a member, the speaker received an additional $6 a day. 
The following tabular statement shows the compensation the 
members of Congress have received in different periods: 

(1) 26 years, 1789 to 1815, $6 a day. 

(2) 2 years, 1815 to 1817, $1,500 a year. 

(3) 38 years, 1817 to 1S55, $8 a day. 

(4) 10 years, 1855 to 1865, $3,000 a year. 

(5) 6 years, 1865 to 1871, $5,000 a year. 

(6) 3 years, 1871 to 1874, $7,500 a year. 

(7) 29 years, 1874 to 1907, $5,000 a year. 

(8) 8 years, 1907 to , $7,500 a year. 

The speaker of the House and the president of the Senate 
receive each $12,000 a year. 

In addition to the compensation of $7,500 a year each 
member receives, at present, mileage at the rate of twenty 
cents a mile, a certain sum for clerk hire, and also an allow- 
ance for stationery and other articles necessary in the per- 
formance of his legislative duties. 

The allowance known as mileage is made by law to 
members of Congress for their journeys to and from Wash- 
ington. Constructive mileage was an allowance for journeys 
which were merely supposed to be made when Congress 
adjourned or an extra session was called. Mileage is sup- 
posed to be calculated on the basis of the shortest mail 
route from the residence of the member of Congress to 
Washington. Members of Congress have, however, rendered 
accounts for mileage for journeys to Washington reckoned 
by some other than the shortest mail route. In 1848, 
Horace Greeley published a statement showing the distances 
the members would have traveled by the shortest mail 
route and the distances for which mileage was actually paid. 



84 THE GOVERNMENT OF THE UNITED STATES 

The excess of distance was more than 183,000 miles, and 
the excess in payment for the thirtieth Congress was over 
$73,000. In 1865 the rate of mileage was reduced from 
forty to twenty cents a mile. It is now granted for one 
round trip each session. 

Topics. — Policy of requiring members of the national legislature 
to serve without pay. — Payment by constituents. — Project of pay- 
ment by States. — Plan to pay from funds of Federal Government 
adopted. — Different rates of payment at different times. — Total 
compensation. 

References. — Dawes, How We Are Governed, 97; Fiske, Civil 
Government, 227; Hart, Actual Government, 228; Hinsdale, Ameri- 
can Government, 182. 

43. Members of Congress and Offices. — It was a part 
of the general plan of the founders of the Government to 
have the offices as widely distributed as possible. They 
aimed to have the legislative, executive, and judicial func- 
tions performed by different persons. The few cases in which 
this design is not carried out, as instanced by the legislative 
functions of the chief executive and by the administrative 
functions of the Senate, are exceptional. In carrying out 
their purpose with respect to the members of Congress, the 
makers of the Constitution provided that "no senator or 
representative shall, during the time for which he was 
elected, be appointed to any civil office under the authority 
of the United States which shall have been created, or the 
emoluments whereof shall have been increased, during such 
time; and no person holding any office under the United 
States shall be a member of either house during his con- 
tinuance in office." This makes it impossible for Congress 
to create offices for its members. The reference in the 
second part of the provision is to " holding any office under 
the United States. " It does not appear to prevent a member 
of Congress from holding a State office, although a union of 



THE FEDERAL LEGISLATURE S5 

Federal and State offices in one person is clearly opposed to 
the spirit of the Government. It prevents a member of 
Congress from holding a seat in the President's Cabinet. 
This prohibition has called forth abundant comment, and 
has led to the suggestion that such constitutional changes 
should be made as would enable Cabinet officers to be mem- 
bers of Congress. It has been urged that in this respect 
the United States should imitate England, where the mem- 
bers of the Cabinet, or ministry, are at the same time 
members of Parliament. But the changes in governmental 
procedure that would appear in carrying out such a measure 
have prevented a very wide advocacy of it. At present the 
members of the Cabinet and the President have charge of 
executive affairs, but they have no power to introduce bills 
directly. When, however, they wish a particular matter 
presented to Congress in the form of a bill, they are not 
likely to have any difficulty in finding a member of one 
house or the other who is willing to introduce the bill 
desired. Under the English system the ministry has charge 
of the executive business and also leads the majority in 
Parliament in legislation; it brings in all important bills, 
controls the order in which bills shall be brought up for 
discussion and passage, and determines what action shall 
be taken on amendments made in the Parliament. If any 
important bill urged by the ministry is opposed by the 
majority of the Parliament, the ministry is expected to 
resign; for it must be supported by the parliamentary 
majority. Under the American system the President is 
elected for four years, and the members of his Cabinet hold 
office during his pleasure; and the votes of Congress have no 
influence on their tenure of office. In France the parlia- 
mentary responsibility of the ministry with an elected 
president has contributed to frequent changes of the minis- 
try and a limitation of the power of the president of the 
republic. 



86 THE GOVERNMENT OF THE UNITED STATES 

Topics. — Distribution of offices. — Position of members of Con- 
gress with respect to office under the United States. — The Cabinet 
and Congress. 

References. — Dawes, How We Are Governed, 99, 100; Hart, 
Actual Government, 243, 244. 

44. The Speaker of the House and the President of 
the Senate. — The Vice-President of the United States is the 
presiding officer of the Senate. The Senate chooses a pres- 
ident pro tempore to act in the absence of the Vice- 
President, or when that officer "shall exercise the office of 
President of the United States." The speaker or presid- 
ing officer of the Senate may call any member to preside in 
his place. The member thus called acts for one day only, 
or for a shorter period. Neither the Vice-President nor the 
president pro tempore exercises much power. The Vice- 
President presiding votes when there is a tie, and decides 
the question. The president pro tempore votes as a member 
of the Senate; but, in case of a tie, while he is presiding and 
after he has voted, he has no power to decide the question 
by a casting vote, and the measure is lost. Neither appoints 
committees nor exerts any special influence on the conduct 
of the Senate's affairs. 

The office of Speaker of the House of Representatives, on 
the contrary, before the recent change, was a position of great 
power. Elected by the members from their own number in ac- 
cordance with the constitutional provision that "the House of 
Representatives shall choose their speaker and other officers," 
the speaker found one of the sources of his great power in his 
privilege of appointing the standing committees of the House. 
This privilege was conferred by the House under a rule passed 
on the first of January, 1790. and readopted by subsequent 
Congresses. According to this rule, "all committees shall be 
appointed by the speaker unless otherwise specially directed 
by the House." In appointing these committees the speaker 



THE FEDERAL LEGISLATURE 87 

decided who should be the chairman of each ; he also provided 
that the chairman and a majority of each committee should 
be of the party to which he belonged. In this way he prac- 
tically determined the action of the House and the course of 
congressional legislation; for no measure could come before 
Congress to be voted on that was not brought up by a report 
of a committee. Another source of the speaker's power was 
his right to control the proceedings of the House to such an 
extent that no member could introduce a motion, report a 
bill, or make a speech unless recognized by the speaker. He 
usually knew beforehand what members wished to be recog- 
nized; for they had conferred with him, and he had a list of 
their names before him during the meeting. 

This "despotism of the speaker" finally led to a revolt, 
and the House, by a resolution adopted March 19, 1910, pro- 
vided that there should be a committee on rules, elected by 
the House, consisting of ten members, six of whom should be 
members of the majority party and four of whom should be 
members of the minority party. Under this resolution the 
speaker could not be a member of this committee, and the 
committee was required to elect its own chairman from its 
own members. This made it possible for the House through 
its committee on rules to determine all those matters which 
had given the speaker his great power. 

The speaker is a member of the House of Representatives, 
but the "other officers " are not members. They are a clerk, a 
sergeant-at-arms, a doorkeeper, a postmaster, and a chaplain. 

Topics. — Presiding officer of the Senate. — President pro 
tempore. — Member called to preside. — Case of a tie. — The speaker. 
— Election. — Speaker's power. 

References.— Dawes, How We Are Governed, 120-145; Fiske, 
Civil Government, 228; Ford, American Citizen's Manual, 14, 18; 
Hart, Practical Essays, 1-20; Hart, Actual Government, 231-233; 
Congressional Record, March, 1910. 



8$ THE GOVERNMENT OF THE UNITED STATES 

45. Congressional Committees and Legislation. — In 

some of the cantons of Switzerland, as well as in some of the 
towns of New England, all of the voters come together to 
make laws for the canton or town. It would evidently be 
impossible for all the voters of a State like New York, or for 
all the voters of the United States, to assemble. Hence, 
a few are selected as members of the State legislature, or 
as members of Congress, to act for the whole. In the same 
way there are many things which a large body, like the 
Senate or the House of Representatives, has to do that can 
be more advantageously done by a small number of members 
than by the entire assembly. For this reason each house of 
Congress has a number of committees among which are 
distributed certain parts of the work necessary in connection 
with legislation. In the Senate the committees are elected by 
ballot. This involves a somewhat elaborate process. Each 
party in the Senate has its own organization. The members 
of each party sometimes hold meetings by themselves, in 
which they determine what position they will assume with 
respect to measures before the Senate. These meetings are 
called party caucuses. The party chief appoints certain 
party or caucus committees. One of these is called the 
Committee on Committees. The main business of this com- 
mittee is to nominate persons for membership in the various 
regular committees of the Senate. When the two party 
" slates " are made up — that is, when each of the party com- 
mittees on committees has arranged the lists of the candidates 
for the several Senate committees — the lists are brought 
before the Senate and voted on, the party having a majority 
in the Senate naturally electing the committees proposed by 
its party Committee on Committees. The Republican 
Committee on Committees has varied in number of mem- 
bers during the last fifty years from three to nine; while 
the Democratic Committee on Committees for many years 
has consisted of nine members. The list of Senate standing 



THE FEDERAL LEGISLATURE 89 

committees given in the footnote indicates the large number 
of subjects constantly claiming the attention of the Senate. 1 
It is found by experience that both the majority and 
the minority in the Senate, as well as in the Congress as a 
whole, need leaders in order to deal effectually with the mul- 
titude of affairs that demand consideration. Each party, 
therefore, recognizes a small number of its older and abler 
members as a so-called "steering committee." These mem- 
bers watch the course of lagislative events, call caucuses, 
decide what measures to bring forward for action and what 
measures to pass over, and, in general, direct the forces of 
their party. 

1 In the Senate there are the following committees : Agriculture and 
Forestry; Appropriations; to Audit and Control the Contingent Ex- 
penses of the Senate; the Census; Civil Service and Retrenchment; 
Claims; Coast and Insular Survey; Coast Defenses; Commerce; Con- 
servation of National Resources; Corporations Organized in the District 
of Columbia; Disposition of Useless Papers in the Executive Depart- 
ments; the District of Columbia; Education and Labor; Engrossed Bills; 
Enrolled Bills; Examination of Civil Service; Expenditures of the Ex- 
ecutive Departments; Finance; Fisheries; Five Civilized Tribes of 
Indians; Foreign Relations; Forest Reservations and the Protection of 
Game; the Geological Survey; Immigration; Indian Affairs; Indian 
Depredations; Industrial Expositions; Interoceanic Canals; Interstate 
Commerce; Investigate Trespassers upon Indian Lands; Irrigation and 
Reclamation of Arid Lands; the Judiciary; Library; Manufactures; 
Military Affairs; Mines and Mining; Mississippi River and its Tribu- 
taries; Naval Affairs; Pacific Islands and Porto Rico; Pacific Railroads; 
Patents; Pensions; the Philippines; Post Offices and Post Roads; 
Printing; Private Land Claims; Privileges and Elections; Public Build- 
ings and Grounds; Public Expenditures; Public Health and National 
Quarantine; Public Lands; Railroads; Relations with Canada; Relations 
with Cuba; the Revision of the Laws of the United States; Revolutionary 
Claims; Rules; Standards, Weights, and Measures; Territories; Trans- 
portation Routes to the Seaboard; Transportation and Sale of Meat 
Products; University of the United States; Woman Suffrage. 

Besides these standing committees the Senate creates select com- 
mittees for special purposes. 
7 



90 THE GOVERNMENT OF THE UNITED STATES 

In the House of Representatives the standing commit- 
tees of that body are appointed by the speaker. This is 
the speaker's most difficult and most important task at the 
beginning of each Congress. There are the ambitions of 
381 members to be satisfied, and it is safe to say that this 
task is never successfully accomplished. The older mem- 
bers are usually allowed to continue on the committees 
where they have served. It is expected that the chairmen 
of all of the House committees will be members of the 
dominant party, but that the committees will embrace 
members from both parties. The standing committees of 
the House of Representatives in the sixty-first Congress 
numbered fifty-six, besides the joint standing commit- 
tees. 1 

1 The following is a list of the standing committees of the House of 
Representatives of the sixty-first Congress: Accounts; Agriculture; 
Alcoholic Liquor Traffic; Appropriations; Banking and Currency; 
the Census; Claims; Coinage, Weights, and Measures; District cf 
Columbia; Education; Election of President, Vice-President, and Rep- 
resentatives in Congress; Elections; Expenditures in the Department 
of Agriculture; Expenditures in the Department of Justice; Expend- 
itures in the Interior Department; Expenditures in the Navy Depart- 
ment; Expenditures in the Post-Office Department; Expenditures in 
the State Department; Expenditures in the Treasury Department; Ex- 
penditures in the War Department; Expenditures on Public Buildings; 
Foreign Affairs; Immigration and Naturalization; Indian Affairs; In- 
dustrial Arts and Expositions; Insular Affairs; Interstate and Foreign 
Commerce; Invalid Pensions; Irrigation of Arid Lands; Judiciary; 
Labor; Levees and Improvements of the Mississippi River; Manufac- 
tures; Merchant Marine and Fisheries; Mileage; Military Affairs; the 
Militia; Mines and Mining; Naval Affairs; Pacific Railroads; Patents; 
Pensions; Post Office and Post Roads; Private Land Claims; Public 
Buildings and Grounds; Public Lands; Railways and Canals; Reform 
in the Civil Service; Revision of the Laws; Rivers and Harbors; Rules; 
Territories; Ventilation and Acoustics; War Claims; Ways and Means. 
Also the following joint standing committees, viz.: Disposition [of 
Useless Executive Papers; on Enrolled Bills; on the Library; on 
Printing. 



THE FEDERAL LEGISLATURE 91 

In the first years of Congress the Senate was largely 
engaged in executive business. In the field of legislation, 
measures concerning the national debt, plans of taxation, 
and expenditures were especially important; and it was 
recognized that the initiative in these matters belonged to 
the House of Representatives. The House was therefore 
obliged to appoint committees very early. In 1802 there 
were five, and the number was afterward increased as the 
amount and variety of the business grew. In the Senate 
there were no standing committees until 1816, and usually 
the committees of the Senate have been less numerous than 
those of the House. 

The chairman of each committee is the first person 
named in the official list of the members published at the 
time of their appointment. He has a secretary, who is 
paid by Congress; and the committee has a room provided 
for its meetings. These meetings are nominally secret, 
but the public is usually informed of all important con- 
clusions reached from day to day. The real purpose of the 
congressional committees is to facilitate the examination 
of the bills referred to them. They make it possible for 
Congress to do thoroughly what, without the committees, 
it would not be able to do at all. 

"The committee of the whole " is the term applied to all 
the members of a legislative assembly sitting without the 
restraint of the rules which usually govern that body. 
When the House of Representatives goes into a committee 
of the whole, the speaker calls some other member to the 
chair. The members then enjoy a freedom in debate not 
permitted in the assembly organized as the House. When 
the committee of the whole has finished its discussion of 
the subject intrusted to it, the speaker resumes the chair, 
and the chairman of the committee of the whole reports to 
the House; and this report may be treated in the same 
manner as the report of any other committee. In com- 



92 THE GOVERNMENT OF THE UNITED STATES 

mittee of the whole, the debate is carried on without refer- 
ence to the rules of the House; a member may speak on any 
question under consideration as often as he can get the 
floor; the previous question cannot be moved, and motions 
cannot be laid on the table. All important public bills 
before the House, relating to trade, revenue, or the grant of 
public money, are considered in committee of the whole. 

The rule of the Senate respecting this matter is that 
"all bills and joint resolutions which shall have received 
two readings shall first be considered by the Senate as in 
committee of the whole, after which they shall be reported to 
the Senate; and any amendments made in committee of the 
ivhole shall again be considered by the Senate, after which 
further amendments may be proposed." 

The most powerful committee of the House is the Com- 
mittee on Rules. This is a committee of five members: 
the speaker of the House, two other members of the domi- 
nant party, and two of the minority. The speaker and the 
two other members of his party constituting a majority, 
are able to make decisions for the committee. The great 
power of the committee is derived from the fact that it 
arranges the order in which business may be done in the 
House; that it practically determines when any committee 
may be allowed to report on a bill that has been assigned 
to it, and that it fixes the time when a report on a bill may 
be discussed, and the amount of time that may be given to 
its discussion. It may thus advance a bill that appears to 
it important, and hold back a bill that seems to be less 
urgent. 

The history of the passage of a bill through its various 
stages till it becomes a law illustrates the services rendered 
by the committees in the business of legislation. A bill 
is a proposition for legislation in the form of a law. It is 
drawn either by a member of the House or by some other 
person, and placed in the hands of a member to be intro- 



THE FEDERAL LEGISLATURE 93 

duced. In the broadest sense, a bill is any legislative 
proposition that can come before Congress. In this sense 
a joint resolution is a bill. Private bills include bills for 
the relief of private persons, pension bills, and bills remov- 
ing political disabilities. Members introducing private 
bills, petitions, or memorials "deliver them to the clerk, 
indorsing their names and the reference or disposition to 
be made thereof." 1 These petitions, memorials, and 
private bills are then entered on the Journal, with the 
names of the members presenting them. A copy of this 
entry is published in the Congressional Record. All other 
bills, memorials, and resolutions are delivered in the same 
manner, indorsed with the names of the members introduc- 
ing them, to the speaker, and are referred by him to their 
appropriate committees. The bills, resolutions, and docu- 
ments thus referred are entered on the Journal, and, as in 
the case of private bills, the entry is printed in the Con- 
gressional Record. The bill having been introduced into 
the House, and read twice on different days, the first time 
by title and the second time in full, passes into the hands 
of one of the standing committees. 2 The committee hav- 
ing charge of the bill practically determines its fate. Of 
course, no committee has power formally to reject a bill; 
but if a bill received is not approved by the committee it 
may be reported to the House with the recommendation 
that it "do not pass," or it may be neglected and lie in the 
committee, and expire with the Congress. A committee 
receiving a bill referred to it has full power over it, but cannot 
change its title or subject. It may, however, set aside all the 
sections of the bill and substitute other sections covering 
the same subject. In considering an important bill the com- 
mittee having it in charge is accustomed to summon various 
persons to furnish information as to the character and need 

1 Rules of the House of Representatives, xxii. 

2 Rules and Practice of the House of Representatives, 163-168; 281-285. 



94 THE GOVERNMENT OF THE UNITED STATES 

of the legislation proposed by the bill in question. The 
persons summoned are required to present the information 
they have to communicate in the form of a continuous state- 
ment, or this information may be drawn out by a system of 
questioning and cross-questioning. The questions, as well as 
the statements of the persons giving the information, are 
printed for the use of members of the committee and of the 
House, particularly when the bill under consideration deals 
with matters of great importance. When a committee re- 
ports to the House, an hour is set apart for debating the bill 
recommended in the report. The member making the report 
and having charge of the business determines who shall 
participate in the debate during this period. He may 
occupy the whole hour himself, if he wishes; but this is not 
customary. " He does not, of course, yield his time in- 
discriminately to anyone who wishes to speak. He gives 
way, indeed, as in fairness he should, to opponents as well as 
to friends of the measure under his charge; but generally 
no one is accorded a share of his time who has not obtained 
his previous promise of the floor; and those who do speak 
must not run beyond the number of minutes he has agreed 
to allow them." 1 In this hour, moreover, no amendment 
may be made without the consent of the member who has 
reported for the committee, and who controls the discussion. 
The procedure here described indicates the power of com- 
mittees in legislation. The chairman of each committee 
has extensive privileges with respect to all business referred 
to his committee. 

In the English Parliament the ministry holds the posi- 
tion of a single powerful committee and is largely respon- 
sible for the character of the laws passed. As Mr. Bryce 
says, "If a bad act is passed or a good bill rejected, the 
blame falls primarily upon the ministry in power." 2 

1 Wilson, Congressional Government, 76. 

2 American Commonwealth, i, 156. 



THE FEDERAL LEGISLATURE 95 

Persons accustomed to the English system have some- 
times been disposed to criticise the American system, under 
which a large number of committees exercise almost equal 
authority with respect to the subjects committed to them 
respectively. They have called attention to the fact that 
in this extensive subdivision of the work nobody appears 
to be responsible. In case bad laws are passed the Cabinet 
cannot be blamed, for it has no voice in lawmaking. The 
House may shirk responsibility on the ground that it was 
in a position where it was practically obliged to follow the 
decision of the committee; and the great number of the 
committees, whose members are generally unknown, make 
it impossible to call anybody to account. The difficulty 
or impossibility of properly fixing responsibility for bad laws 
is set down as one of the defects of the American system. 
Other defects are that it facilitates corruption, and by 
destroying the unity of the legislative machine produces 
laws not necessarily in proportion to the legislation actually 
needed. 

On the other hand, there are certain advantages of the 
American system of many committees: 

1. It furnishes agencies for examining the large number 
of bills introduced, and smothering those that ought not 
to be allowed to survive and take up the time of the whole 
legislative body. 

2. Each committee constitutes a small and efficient 
body for gathering information concerning the subjects 
of the bills referred to it. By this means many lines of 
investigation may be carried on at the same time. 

3. Through inquiries carried on by the committees, 
the House may have at its command extensive and detailed 
information concerning the conduct of the various depart- 
ments. 

4. This system furnishes opportunities for making 
specially qualified members chairmen of committees, and 



96 THE GOVERNMENT OF THE UNITED STATES 

thus bringing their special knowledge and training to bear 
on important departments of the Government. 

5. In the committees, the administrative officers, par- 
ticularly members of the Cabinet, have opportunities to 
urge such legislative measures as are of special interest to 
the executive departments; and by this means there is 
extended to the members of the Cabinet some of the facilities 
for influencing legislation that are enjoyed by the English 
tainistry. 

Topics. — Reason for committees in the Senate and the House. — 
Appointment of committees. — Committee on Committees. — The 
Steering Committee. — Relation of committees to dominant party. — 
Committee of the Whole. — Committee on Rules. — Work of com- 
mittees in legislation. — In special functions. — Advantages of 
American system of many committees. 

References. — Bryce, American Commonwealth, i, 150-170; 
Dawes, How We Are Governed, 127, 141 ; Hart, Actual Government, 
233-254; Macy, Our Government, 185-188; Wilson, Congressional 
Government, 60-130. 

44. Enacting a Law. — When a bill is reported to the 
Senate or the House by the committee that has had it in 
charge, it is read a third time; that is to say, its title is 
announced, and it is brought to the attention of the House 
for final action. 

The enacting clause of a bill before either house of Con- 
gress is: " Be it enacted by the Senate and House of Representa- 
tives of the United States of America in Congress assembled." 
An amendment is any proposed change in a motion or a 
bill. Any amendment may be amended, but an amendment 
to the second amendment will not be accepted. Having 
passed both houses, the bill is signed by the speaker of the 
House and the president of the Senate, and sent to the 
President for his signature. If not returned within ten 
days after it shall have been presented to the President, it 



THE FEDERAL LEGISLATURE 97 

"shall be a law, in like manner as if he had signed it, un- 
less the Congress by their adjournment prevent its return, 
in which case it shall not be a law." Any bill may originate 
in either house, except bills for raising a revenue, which 
shall originate in the House of Representatives. But reve- 
nue bills originating in the House may be amended in the 
Senate. The English House of Commons, in its struggle 
with royal authority, insisted on originating all revenue 
bills. This gave the Commons virtual control of the na- 
tional treasury and made possible the achievement of its 
independence. The circumstances which led to the estab- 
lishment of this principle in England were wanting in the 
United States, yet in spite of this fact the English prece- 
dent was followed. 

In the course of a bill's progress through Congress, a 
rider is sometimes attached to the bill. A rider is a clause, 
a paragraph, or a section added to a bill, dealing with a 
subject other than that treated of in the bill. It is thus 
added for the purpose of overcoming an objection to it, which 
does not exist with respect to the bill to which it is attached. 
It is resorted to where the majority in the Legislature is 
sufficient to pass it as a separate bill, but not sufficient to 
pass it over the Executive veto, and particularly where it 
is known that as a separate bill it would be vetoed. By 
attaching it to some necessary bill, as, for example, to the 
general appropriation bill, it is expected that it will receive 
the formal approval of the Executive; for it is supposed 
that he will be less reluctant to have it become a law than to 
incur the odium of embarrassing the Government by vetoing 
the appropriation bill. In order that a rider may be em- 
ployed effectively, the Executive must be under obligation 
to approve or to veto a bill as a whole. To prevent resort 
to this legislative device in State legislatures, many of the 
States require a bill to relate to only a single subject, and 
give to the governor the power to veto parts of appropria- 



98 THE GOVERNMENT OF THE UNITED STATES 

tion bills and to approve other parts. It has been suggested 
that the President should be granted this power. 

Concurrent resolutions are resolutions " adopted by 
both houses, chiefly on the subject of adjournment of the 
session." They do not require the President's signature. 
On the contrary, a joint resolution is adopted by both 
houses, but requires the signature of the President. 

A joint resolution is introduced in the same manner as a 
bill; and, after it has passed both houses, it requires the 
approval of the President in order to be valid. It was 
used instead of a treaty in the annexation of Texas, in 1845; 
also in the annexation of Hawaii, in 1898. A joint resolu- 
tion may sometimes be passed where a treaty would be 
defeated. It would have required a two-thirds vote of the 
Senate to annex Texas or Hawaii by treaty, but only a 
majority of the Senate and of the House of Representatives 
was required to adopt a joint resolution. By this means a 
large opposition minority in the Senate may be defeated. 

Topics. — Reading a bill. — Enacting clause. — Amendments. — 
Place of origin. — A rider. — Concurrent resolutions. — A joint resolu- 
tion. 

References. — Dawes, How We Are Governed, 150-160; Ford, 
American Citizen's Manual, i, 22-26; Hart, Practical Essays, 206- 
233; Hart, Actual Government, 245-256; Hinsdale, American Gov- 
ernment, 187-192. 

45. Voting in Congress. — Voting in Congress is usually 
viva voce, or by "yeas and nays." The ballot is seldom 
used, but the Constitution requires that the yeas and nays 
shall be entered on the record on the demand of one-fifth 
of the members present. It is required, also, that the yeas 
and nays shall be recorded in cases of votes on bills vetoed 
by the President. A two-thirds vote is required to suspend 
the rules, to modify the adopted order, or to pass in either 
house a bill vetoed by the President. The two-thirds here 



THE FEDERAL LEGISLATURE 99 

referred to is construed to be two-thirds of the members 
present. The calling of the roll for yeas and nays is some- 
times used by a filibustering minority to delay the transac- 
tion of business, which is the main purpose of the obstruct- 
ive tactics designated by the term " filibustering." 

As used with reference to legislation in the United States, 
the term "filibustering" is applied to the attempts of the 
minority of a legislative body to delay the taking of a vote. 
The methods employed are different under different cir- 
cumstances. In the Senate there is no rule for closing a 
debate, and senators have sometimes taken advantage of 
this freedom, by long speeches to prevent action on meas- 
ures obnoxious to the minority. The Federal Elections Bill 
was under discussion during December, 1900, and January 
and February, 1901. The minority sought to defeat the 
measure by tiring out the majority, and succeeded both in 
this and in defeating the bill by making twenty-five long 
speeches against it, and by announcing that they would 
talk indefinitely. 

Under the rules of the House there are effective ways 
of checking filibustering. In the first place, any member 
who can get the floor may move " that the previous question 
be now put." This means that the pending question, the 
question under discussion, be voted on. As the motion 
of the " previous question " is not debatable, the speaker 
must put it at once. If carried, the debate ceases, and the 
question which the opposition has been trying to delay 
must be voted on. In the second place, the rules of the 
House, with respect to the number and length of the speeches 
that members may make, render it practically impossible 
to carry on a filibustering campaign with long and frequent 
speeches. On the other hand, by moving that the House 
adjourn, that it take a recess, or that when it adjourns 
it adjourn to some specified time, or by making other mo- 
tions that are strictly legitimate under the rules, much time 



100 THE GOVERNMENT OF THE UNITED STATES 

may be consumed, particularly as these motions involve, each 
time, calling the roll of an assembly of nearly 400 members. 
A tie vote is that in which equal numbers of votes are 
given on the two sides of the question. In such a case the mo- 
tion is lost. This is the rule in the House, and the speaker 
votes only when his vote would be decisive if counted. The 
casting vote is given in the Senate by the Vice-President 
in case of a tie, but this power is not exercised by the presi- 
dent pro tempore. The previous question is the name given 
to a motion that the debate cease, and that a vote be taken 
immediately on the question under consideration. This mo- 
tion is not debatable, and is used only in the House. The 
Senate makes use of no such means for closing a debate. 

Topics. — Methods of voting. — Roll-call in filibustering. — Re- 
quirement of two-thirds vote. — A tie. — The previous question. 

References. — Dawes, How We Are Governed, 133-137, 144; 
Hart, Actual Government, 252; Hinsdale, American Government, 179; 
Miller, Lectures, 197. 

46. Parliamentary Law. — The course of business in 
Congress is conducted under a body of rules, regulations, 
and laws which are comprehended in the general designa- 
tion of parliamentary law. The essential features of this 
law have their origin in the usages of the British Parlia- 
ment, and have been carried to other nations as other 
nations have imitated the legislative institutions and prac- 
tice of England. In passing from England to other coun- 
tries, or in being applied to different legislative bodies 
existing under different social conditions, this law has under- 
gone certain modifications; but even under these new 
conditions it has retained the main characteristics which 
it possessed in the country of its origin. 

Topics. — Definition of parliamentary law. — Origin of it. 
References. — Hart, Actual Government, 239-244; Hinsdale, 
American Government, 178; Miller, Lectures, 194-196. 



THE FEDERAL LEGISLATURE 101 

FOR ADVANCED STUDY 

Organization of the Government under President 
Washington. — Hunt, Life. of James Madison, 168, 169; Schouler, 
United States, i, 80-105; McMaster, United States, i, 533-535, 540- 
544; Hart, Formation, 141-143; Hildreth, United States, iv, 101-108; 
Lodge, Washington, ii, 61-72; Hart, Formation, 143-145; Johnston, 
American Politics, 20, 21; H. von Hoist, Constitutional Law, &7-11 ; 
Bryce, American Commonwealth, i, Chap. IX; Madison's Letters, i, 
423-427; Hamilton, The Federalist, No. 84. 

Treaty with Great Britain, November 19, 1794 (Jay's 
Treaty). — MacDonald, Select Documents, ii, 114-130; Pellew, John 
Jay, 301-317; McMaster, United States, ii, 212-235, 245-256, 263- 
284; Hunt, James Madison, Chap. XXIII; Lodge, Washington, ii, 
176-207; H. von Hoist, United States, ii, 122-128; Hildreth, United 
States, iv, 539-564, 584-616; Johnston, American Politics, 37-39; 
Gordy, Political Parties, i, Chap. XV; Schouler, United States, i, 289- 
305, 307-314; Hart, Formation, 162, 163; Hart, Contemporaries, hi, 
315-319; Hamilton, Works, v, 106-137; Ames, Works, ii, 37-71; ed. 
1809, 58-93. 

How Federal Laws Are Made. — North American Review, 
clix, 537-544; clxii, 14-20; Albany Law Journal, xlviii, 386-390; 
American Bar Association Reports, 1887, 396-405; Wilson, Con- 
gressional Government, Chaps. II-IV; Parton, Topics of the Time, 
Nos. 3, 6, 8; American Historical Association Papers, v, 367-375; 
H. von Hoist, Constitutional Law, $$ 31-34; Bryce, American Com- 
monwealth, i, Chaps. XVI-XXI; Follett, The Speaker, Chaps. IV- 
IX; Hart, Practical Essays, No. 9; Lodge, Historical and Political 
Essays, 169-197. 

The Organization and Proceedings of Congress. — Fol- 
lett, The Speaker; Hinsdale, American Government, Chaps. XVI- 
XXV; Bryce, American Commonwealth, i, Chaps. X-XXI; H. von 
Hoist, Constitutional Law, % 20-24, 28-34; Cooley, Constitutional 
Law, 47-52, 54-99 ; Ford, American Politics, Chaps. XVIII-XXI ; 
Kerr, United States Senate; Lalor, Cyclopedia, see articles on 
Censures, Congress (U. S.), Congress (Powers), Congress (Sessions), 
House of Representatives, Riders, Salary Grab, Senate; Wilson, 



102 THE GOVERNMENT OF THE UNITED STATES 

Congressional Government; Lowell, Essays on Government; McKee, 
Manual of Congressional Practice; McConachie, Congressional 
Committees. 

The Speaker. — Bryce, American Commonwealth, i, 128-141; 
Benton, Thirty Years' View; Blaine, Twenty Years in Congress; 
Cox, Three Decades; John Sherman, Recollections; Follett, The 
Speaker, Chaps. II, III, X, XI; Hart, Practical Essays, No. 1; 
Congressional Record. 

The Formation and Work of Congressional Commit- 
tees. — McConachie, Congressional Committees; Snow, Defense of 
Congressional Government (American Historical Association Papers, 
iv, 309-328); Bryce, American Commonwealth, i, Chaps. XIV, XV; 
H. von Hoist, Constitutional Law, \\ 32, 37: Congressional Record; 
House and Senate Reports. 

The Legal Tender Acts. — See Legal Tender Cases, 12 
Wallace, 457; 110 United States, 421; Dewey, Financial History, 
362-367; Knox, United States Notes, 156-166; Hart, Life of Chase, 
389-414; Upton, Money in Politics, 157-170. 

Description of the House of Representatives in Action. 
— Congressional Record; Congressional Directory; Harrison, This 
Country of Ours, 45-48; Bryce, American Commonwealth, i, 138-170; 
Rules and Practice of the House of Representatives. 

The Election of United States Senators. — Dallinger, 
Nominations for Elective Offices, 89; Bryce, American Common- 
wealth, i, 95, 108-120; Forum, 18: 270-278; 21: 385-397; Atlantic 
Monthly, 68:227-232. 

The Powers of the Speaker. — Follett, The Speaker; Bryce, 
American Commonwealth, i, 48, 134-137, 391 ; Rules and Practice of 
the House of Representatives. See Digest. 



CHAPTER V 

WHAT CONGRESS CAN DO 

49. The General Rule. — We shall be able to get a clear 
idea of this subject if we remember that Congress can do 
only those things that it is authorized to do by the language 
of the Constitution. The part of the Constitution which 
deals with this matter is the eighth section of the first 
article. This section should be carefully read at this point. 
The powers that are conveyed to the Congress by it are 
called delegated powers. They are called so because the 
Constitution in the beginning was adopted by the States, 
and the States were thought of as giving up, or delegating, 
to the central Legislature some of the powers which they 
had possessed. All the powers that were not thus given up, 
or delegated, were retained by the States. This is the reason 
for calling the powers which the States now have, " reserved " 
powers. They have not been given away. They have been 
reserved. The tenth amendment to the Constitution ex- 
presses this in the simplest possible way. It says, "the 
powers not delegated to the United States by the Con- 
stitution, nor prohibited by it to the States, are reserved to 
the States respectively, or to the people." 

The Articles of Confederation expressed a similar idea, 
but contained the word expressly before "delegated." The 
makers of the Constitution omitted this word, because they 
saw that it would be impossible to indicate expressly and 
in detail all the subjects on which the powers of the Federal 

103 



104 THE GOVERNMENT OF THE UNITED STATES 

Government might, in the future, be exerted. They wished 
Congress to be able to do whatever might be necessary to 
carry into execution the powers that might be expressly 
granted. The powers that were not expressly granted, but 
were necessary to make effective those that were expressly 
granted, came to be called "implied" powers. The char- 
acter of these implied powers may be illustrated in this 
way: Congress was expressly authorized, among other 
things, to raise and support armies; but it was not expressly 
authorized to issue paper money and make it legal tender 
for the payment of debts. But Congress did, during the 
Civil War, issue paper money and made it legal tender. It 
claimed that it could do this because the use of such paper 
money was necessary to enable it to maintain the armies 
it was authorized to raise and support; hence, in the 
opinion of Congress, it was implied that that body might 
issue the money in question. Whether, in any case, a 
claim like this is valid has to be determined by the courts. 

Topics. — General rule as to power of Congress. — Delegated 
powers. — Reserved powers. — The tenth amendment. — Implied 
powers. — Reason for not requiring powers to be expressly dele- 
gated. 

References. — Miller, Lectures, 227-236; Cooley, Constitutional 
Law, 54. 

50. Taxation. — Congress can levy and collect taxes. It 
is through taxation that the Government receives funds for 
meeting its numerous expenses. In order that civilized 
society may exist, men must have rights and be able to 
make them recognized; but rights are created or authorita- 
tively defined by government, and it is to the Government 
that the individual person must look for the maintenance 
of his rights. Yet government can exist only under the 
condition of being able to levy and collect taxes. It is only 
by the revenues derived from taxation that the State is 



WHAT CONGRESS CAN DO 105 

able to pay its officers and meet all its other necessary ex- 
penses. The power to tax, therefore, belongs to the State 
as a quality without which the State cannot exist; and the 
amount of taxes it may levy is limited only by the State's 
own estimate of needed revenue. 

Topics. — Purpose of taxation. — Power to tax fundamentally 
necessary for a State. 

References. — Ford, American Citizen's Manual, Part II., 137- 
149; Hart, Actual Government, 381-407; Lalor, Cyclopaedia, iii, 
618; i, 712. 

51. Classes of Taxes. — There are two general classes of 
taxes. These are direct taxes and indirect taxes. Direct 
taxes are those which are demanded from the persons who 
are expected to bear the burden of their payment. A poll 
tax is a direct tax. A tax on land also is regarded as a 
direct tax. " Indirect taxes are those which are demanded 
from one person in the expectation and intention that he 
shall indemnify himself at the expense of another." If a 
merchant, for example, pays duties on goods imported, he 
will add the amount of the duties to the selling price of the 
goods. By this means he shifts the burden of the duties 
from himself to the persons who buy and use the goods. If 
an excise tax is collected from the manufacturer of cigars, 
for instance, the amount of this tax will be added by him to 
the price of the cigars and will thus be ultimately paid not 
by the producer, but by the consumer. Taxes of this kind 
are indirect taxes. The persons who advance the taxes to 
the collector indemnify themselves by receiving an addi- 
tional price from the consumer. Thus the consumer pays 
the tax indirectly. Many persons object to paying direct 
taxes, because they seem to be receiving nothing for their 
money; but the payment of heavy indirect taxes excites less 
complaint, because the tax is concealed in the price of the 
goods purchased. 
8 



106 THE GOVERNMENT OF THE UNITED STATES 

There are two conditions imposed on Congress's power 
of taxation: The first of these is that direct taxes shall be 
apportioned among the States according to their population; 
the second is that all other kinds of taxes imposed by Con- 
gress "shall be uniform throughout the United States." 

There has been much discussion as to -what taxes, within 
the meaning of the Constitution, are direct taxes. The 
more restricted view embraces only capitation taxes and 
taxes on real estate. Justice Miller, in his lectures on the 
Constitution, presents this view. Some decisions by mem- 
bers of the Supreme Court add to these two items taxes on 
personal property. Indirect taxes are of two classes: One 
class embraces indirect taxes levied usually on articles pro- 
duced in the country where the tax is collected. This is 
an excise tax. The indirect taxes of the other class are 
such as are levied on goods, produced abroad, when they 
are brought into the country. Indirect taxes of this second 
class are called customs duties. Both excise taxes and cus- 
toms duties are thus indirect taxes, and are both levied and 
collected by the Federal Government. The first are taxes 
for internal revenue; the second are taxes on imports. 

Topics. — Direct and indirect taxes. — Conditions imposed on 
Congress's power of taxation. — Definition of direct taxes. — In- 
stances of indirect taxes. 

References. — Hinsdale, American Government, 195-198; Miller, 
Lectures, 236-239. 

52. Equality and Uniformity of Taxation. — Many of 
the State constitutions require that taxation shall be equal 
and uniform ; but the Federal Constitution requires simply 
that all duties, imposts, and excises shall be uniform through- 
out the United States. Equality of taxation, in the sense of 
an apportionment of the burden " so that each person shall 
feel neither more nor less inconvenience from his share of the 
payment than every other person experiences from his," 



WHAT CONGRESS CAN DO 107 

is unattainable; it is, however, an ideal that legislators may 
well keep in mind in devising systems of taxation. " Equal- 
ity of contribution is not enjoined in the Bill of Rights, and 
probably because it was known to be impracticable." 
Uniformity of taxation may be secured when taxes are im- 
posed by general laws that apply in all parts of the territory 
under the jurisdiction of the body levying the taxes. All 
persons in paying the taxes imposed may not make equal 
sacrifices; but the system, whatever it is, applies uniformly 
and without exception throughout the region for which it 
was formed. 

The taxes which the Constitution provides "shall be 
uniform throughout the United States" "are not required 
to be uniform as between the different articles that are 
taxed, but uniform as between the different places and 
different States. Whisky, for instance, shall be taxed no 
higher in the State of Illinois or Kentucky, where much of 
that article is produced, than it is in Pennsylvania. The 
tax must be uniform on the particular article; and it is 
uniform, within the meaning of the constitutional require- 
ment, if it is made to bear the same percentage over all the 
United States." 

Topics. — Equal and uniform taxes. — Meaning of phrase, "shall 
be uniform throughout the United States." 
References. — Miller, Lectures, 239-242. 

53. Taxation of Governmental Means. — An important 
limitation of the taxing power is found in the principle that 
all subjects over which the power of a State extends are 
objects of taxation, and that those over which it does not 
extend are exempt from taxation. In carrying out this 
principle it has been decided that the State governments 
cannot lay a tax upon the constitutional means employed 
by the Government of the Union to execute its constitu- 
tional powers. A bank created by the United States as its 



108 THE GOVERNMENT OF THE UNITED STATES 

fiscal agent, or the revenue stamps or treasury notes issued 
by the United States, or the bonds or other securities issued 
by the United States, or the salaries of Federal officers are 
not subject to taxation by the States. On the other hand, 
the United States cannot tax a railroad owned by a State, 
or the process of the State courts, or the salary of a State 
officer, or a State or municipal corporation. These rules 
rest on the principle that the Federal Government and the 
State governments must be left unobstructed by extraneous 
legislation in carrying out their legitimate operations; but 
the power of either to tax the constitutional means of the 
other involves the power to destroy these means, and " the 
power to destroy may defeat and render useless the power 
to create." " There is," therefore, "a plain repugnance in 
conferring on one government a power to control the con- 
stitutional measures of another." Any other rule would 
permit one government to tax all the means employed by 
another government " to an excess that would defeat all the 
ends of government." 

Topics. — Governmental means exempt from taxation. — In- 
stances. — Basis of this rule. 

References. — Cooley, Constitutional Law, 60-62. 

54. Purposes of Taxes. — That clause in the Constitution 
conferring the power to levy and collect taxes specifies the 
purposes for which the revenue derived from taxes may be 
used. It may be used " to pay the debts and provide for the 
common defense and general welfare of the United States," 
but its use for merely private ends is not authorized. A tax 
on imports, that has no other purpose than to raise the price 
of an article so that a manufacturer of it in the country 
may receive a larger profit, would not appear, when con- 
sidered from this point of view, to be supported by the 
Constitution. When, however, a tax on imports is levied for 
revenue which is designed to be used for public purposes, 



WHAT CONGRESS CAN DO 109 

its validity is not impeached by the fact that it causes a 
rise in the price of the article produced in the country, and 
thus enables the manufacturer to make a larger profit. The 
part of the revenue which is paid for salaries is a source of 
private advantage to the employees of the Government; 
but it is expended for a public purpose, inasmuch as the 
service which is thus secured is presumed to contribute to 
the general welfare. This principle is applicable also to 
the payment of pensions. Some public advantage must be 
assigned to justify the imposition of a tax or the expenditure 
of any part of the revenues collected. "There can be no 
lawful tax which is not laid for some public purpose"; but 
the power to determine what is a public purpose belongs to 
the Legislature, and a court will intervene to declare a tax 
void only when the absence of all possible public interest 
in the purposes for which the funds are raised is "so clear 
and palpable as to be perceptible by any mind at first blush." 
" All cases of doubt must be solved in favor of the validity 
of legislative action." 

Topics. — Purposes of Federal taxes. — Protective duties. — Sal- 
aries and pensions. — Criterion of lawful tax. 

References. — Cooley, Constitutional Law, 57-60. 

55. Federal Taxes. — As already stated, the Federal Gov- 
ernment relies chiefly on indirect taxes, while the State 
governments draw their revenues mainly from direct taxes; 
but direct taxes may be laid by the Federal Government. 
When this is done it is provided by the Constitution that 
they shall be apportioned among the States in proportion 
to the population represented in the lower house of Congress. 
It is expressly provided that " no capitation or other direct 
tax shall be laid" except in this manner. When direct 
taxes were laid by the Federal Government in 1798, 1813, 
1815, and 1816, they were laid on lands, improvements, 
dwelling-houses, and slaves; in 1861, they were laid only 



110 THE GOVERNMENT OF THE UNITED STATES 

on lands, improvements, and dwelling-houses. Whenever 
the Government has imposed a tax which is recognized as 
a direct tax, it has never been applied to any objects but 
real estate and slaves; but a tax laid on carriages kept for 
use is not a direct tax; nor is a tax on the circulation of 
banks, or an execution tax, or an excise tax to be regarded 
as a direct tax. 1 

The chief sources of revenue for the Federal Govern- 
ment are customs duties and excise taxes, or taxes on the 
production of commodities. Duties on imports are collected 
by all civilized nations, but the different nations pursue 
widely different policies with respect to the number of arti- 
cles taxed and the rates of taxation. There are two gen- 
eral theories under which duties are imposed on imports. 
One is that by imposing a duty on articles which are brought 
into the country the Government secures a revenue and, at 
the same time, increases the price of the imported articles 
so that manufacturers can produce similar articles with 
larger profits in the country thus protected; and the larger 
profits thus made possible will, it is expected, stimulate the 
growth of industries. Under this theory a special effort is 
made to tax the importation of those wares that are or may 
be produced in the country imposing the tax. The other 
theory is that import duties should be laid in such a way as 
to secure a revenue without increasing the price of the 
articles produced in the country, or creating an artificial 
stimulus in the production of any special class of articles. 
This theory, therefore, provides for import duties principally 
on articles produced only abroad. The purpose of the tax 
in the one case is revenue and protection to home industries. 
The purpose of the tax in the other case is revenue without 
special regard to protection. The revenue from excise 
taxes or taxes on domestic manufactures can be more 

1 Hylton vs. United States, 3 Dallas, 171; Pacific Insurance Co. vs. 
Soule, 8 Wallace, 433; Veazie Bank vs. Fenno, 8 Wallace, 53. 



WHAT CONGRESS CAN DO 111 

readily varied than those derived from customs duties; and 
for this reason changes in the excise taxes are often made 
when the emergency requires an increase or diminution of 
the income of the Federal Government. In case of a sudden 
demand for an increased expenditure to meet the extraor- 
dinary expenses of a war, funds for this purpose are readily 
collected by the extension of the system of excise taxation. 

Topics. — Indirect taxes. — Direct taxes. — Chief sources of Fed- 
eral revenue. — Two theories for imposing customs duties. — The best 
taxes for emergency revenue. 

References. — Bryce, American Commonwealth, i, 171-179; 
Hart, Actual Government, 394-406; Willoughby, Rights and Duties, 
273. 

56. Payment of Debts. — When the Constitution was 
adopted, thus changing the form of government, a question 
naturally arose concerning the debts contracted by the Gov- 
ernment under the Articles of Confederation. If the obli- 
gations of the old Government were not assumed by the 
new Government, a strong opposition to the change was 
inevitable. If, moreover, a State had rejected the Con- 
stitution, it might have claimed to be released from any 
part of the obligations of the central Government. To set 
aside any doubts that might arise on these points, the makers 
of the Constitution declared that " all debts contracted and 
engagements entered into before the adoption of the Con- 
stitution, shall be as valid against the United States under 
this Constitution as under the Confederation." 1 When the 
nation came out of the Civil War under the burden of an 
enormous debt, it again gave positive assurance of its good 
faith and its determination to meet all legal obligations that 
rested on it. In the fourteenth amendment to the Con- 
stitution it declared, "The validity of the public debt of 
the United States, authorized by law, including debts in- 

Constitution, Art. VI. 



112 THE GOVERNMENT OF THE UNITED STATES 

curred for payments of pensions and bounties for services 
in suppressing insurrection or rebellion, shall not be ques-r 
tioned. But neither the United States nor any State shall 
assume or pay any debt or obligation incurred in aid of 
insurrection or rebellion against the United States, or any 
claim for the loss or emancipation of any slave; but all such 
debts, obligations, and claims shall be held illegal and void." 
This declaration was not necessary; but it emphasized the 
principle that lawful debts should be paid; or that obliga- 
tions entered into by a part of the nation in rebellion con- 
stituted, in case of defeat, no proper claim on the Govern- 
ment against which the rebellion had been undertaken. It 
was a pledge of good faith made in the most solemn man- 
ner possible and by the highest authority in the land. 
This declaration did, however, reaffirm the principle that 
the incidental losses of war do not constitute a claim on 
the victorious party. 

Topics. — Debts contracted under Articles of Confederation. — 
Constitutional declaration. — Civil War debts. — Fourteenth amend- 
ment. 

References. — Lalor, Cyclopaedia, i, 725-734; Hart, Actual 
Government, 423-429. 

57. Borrowing Money. — Congress can borrow money. 
The need of this provision is to enable the Government 
to meet extraordinary expenditures. Under ordinary cir- 
cumstances, during times of peace, the Government is ex- 
pected to meet its current expenses with the revenues 
derived from the regular system of taxation; but in under- 
taking a war, or great public works, it is necessary to have 
a very large amount of money for use during a short period. 
It is thought that the war carried on, or the harbor con- 
structed, or the canal dug will confer a benefit which the 
nation will enjoy for several generations; and it therefore 
appears just not to collect by taxation the whole fund for 



WHAT CONGRESS CAN DO 113 

the undertaking in the time required to wage the war or 
to complete the works in question. 

Of course every generation has its own immediate work 
to be performed wherein posterity is the chief beneficiary; 
but there are some great undertakings, like the Civil War, 
or the constructing of the Panama Canal, which may be ex- 
pected to occur only once in the nation's lifetime, and in 
the benefits of which all subsequent generations will par- 
ticipate. The payments needed to carry on such an under- 
taking should be extended over many years. In order to 
do this, the Government borrows money and repays it 
within such a period as may seem expedient in view of the 
resources of the nation. 

In borrowing money the Government issues bonds. 
These bonds are notes promising to pay to the holder the 
sum named in the bond itself, together with interest at a 
fixed rate. The bonds are then sold; and the purchaser, in 
effect, loans to the Government the amount stated in the 
bond or bonds purchased. 

Topics. — The need of borrowing. — The justification of borrow- 
ing. — The method. — Use of bonds. 

References. — Hinsdale, American Government, 199; Hart, 
Actual Government, 412, 426, 429. 

58. Regulation of Commerce. — Congress can regulate 
commerce. Under the Articles of Confederation the power 
to regulate commerce was vested in the several States. This 
gave certain States an advantage over others in matters of 
trade and made it practically impossible to secure uniform 
regulations for all parts of the country. From this con- 
dition arose jealousy and local antagonisms which impressed 
upon the people the need of a closer union of the States and 
the establishment of a central organization endowed with 
power to regulate foreign trade and trade among the States. 
When, therefore, the Constitution was adopted, Congress 



114 THE GOVERNMENT OF THE UNITED STATES 

was given power "to regulate commerce with foreign 
nations, and among the several States, and with the Indian 
tribes." The word commerce, as here used, "describes the 
commercial intercourse between nations and parts of nations 
in all its branches, and is regulated by prescribing rules for 
carrying on this intercourse." 1 

Navigation is included in the meaning of the term com- 
merce and, under this provision, when not confined within 
the limits of a single State, is subject to regulation by Con- 
gress. This provision comprehends all commercial inter- 
course, however carried on, whether over railroads, bridges, 
or ferries, or by boats on rivers or along the coast, or by 
any other means which may be brought into use, when- 
ever this intercourse leads beyond the limits of any State. 
Whatever devices for carrying on commercial intercourse 
the inventive genius of man may create in the future will 
be covered by the powers granted in this provision. 

"The powers thus granted are not confined to the 
instrumentalities of commerce or the postal service known 
or in use when the Constitution was adopted; but they keep 
pace with the progress of the country and adapt themselves 
to the new developments of time and circumstance. They 
extend from the horse with its rider to the stage coach, 
from the sailing vessel to the steamboat, from the coach 
and steamboat to the railroad, and from the railroad to the 
telegraph, as these new agencies are successively brought 
into use to meet the demands of increasing population and 
wealth." 2 

The principal agency employed by the Federal Govern- 
ment in regulating trade among the States is the Inter- 
state Commerce Commission. It consists of five members, 
appointed by the President. It has power to require 

1 Gibbons vs. Ogden, 9 Wheaton, 1. 

2 Pensacola Telegraph Company vs. Western Union Telegraph Com- 
pany, 96 United States, 9. 



WHAT CONGRESS CAN DO 115 

reports from railroads on their operations; it may hear 
complaints, carry on investigations, and compel attendance 
of witnesses. The decisions of the courts are gradually de- 
fining the powers of the Interstate Commerce Commission 
and making it an effective agent of the Federal Government 
in regulating commerce among the States. 

But all buying and selling, all trade within the limits 
of any State, and all commercial intercourse between persons 
at different points within a State, however carried on, is 
under the control of the State government and is not covered 
by Federal legislation. 

The power to regulate commerce "with the Indian 
tribes" is not invalidated or limited by the fact that the 
tribe resides within the limits of a State. For " the treaties 
and laws of the United States contemplate the Indian 
territory as completely separated from that of the States; 
and provide that all intercourse with them shall be carried 
on exclusively by the Government of the Union. " * Neither 
a State nor an individual person has the right to purchase 
lands from the Indians; this right belongs exclusively to 
Congress. 

Topics. — Regulation of commerce. — Meaning of commerce in 
this connection. — Extent of State control. — Regulation of com- 
merce with Indian tribes. 

References. — Ford, American Citizen's Manual, Part II, 33-39; 
Hart, Actual Government, 446-459; Hinsdale, American Government, 
211-215; Miller, Lectures, 433-473. 

59. Prohibition of Commerce. — Congress can prohibit 
commerce. The power to regulate commerce involves the 
power to prohibit it. An instance of prohibition is seen 
in the Embargo Act of 1807. 2 This act provided that "an 
embargo be laid on all ships and vessels in the ports 

1 Worcester vs. Georgia, 6 Peters, 557. 

2 McLaughlin, History of the American Nation, 273-275. 



116 THE GOVERNMENT OF THE UNITED STATES 

and places within the limits or jurisdiction of the United 
States, cleared or not cleared, bound to any foreign port or 
place; and that no clearance be furnished to any ship or 
vessel bound to such foreign port or place except vessels 
under the immediate direction of the President of the 
United States." 

The purpose of this act was to prevent trade between 
the United States and other countries. Other nations have 
sometimes attempted in a similar manner to cut off all 
commercial intercourse with foreign nations. During the 
period between the early part of the seventeenth century 
and the middle of the nineteenth, the Japanese government 
prohibited all trade with other countries and prevented all 
immigration and emigration. The prohibition in the United 
States lasted only a comparatively short time. When the 
law was passed, no definite time was fixed for its contin- 
uance in force; but after two years it was repealed, in 1809. 

The Embargo Act affected disastrously all shipping, 
and thus bore more heavily on New England than on any 
other part of the country. It threw the carrying trade 
largely into the hands of British merchants. The exports 
from the United States declined, in 1808, by four-fifths of 
their value, that is to say, from $110,000,000 to $22,000,000. 
The opposition to the act was taken up by the New England 
State courts. They declared it unconstitutional, on the 
ground that it annihilated commerce, while Congress was 
empowered by the Constitution to regulate it. The State 
legislatures of New England took a position not unlike that 
assumed in the Kentucky and Virginia resolutions, and 
assumed the right to protect their citizens against this op- 
pressive act of Congress. The State courts were hostile to 
it, and the Federal courts in New England seldom found 
juries who would convict for violating it. The Federalists 
went so far in their hostility as to declare in the United 
States Senate that the people were not bound to submit to 



WHAT CONGRESS CAN t>0 117 

it, and that war would follow a persistent attempt to enforce 
it. This view was confirmed by John Quincy Adams, who 
reported that, if the Government should attempt to use 
force, the New England States would temporarily or per- 
manently withdraw from the Union. 

Topics. — Prohibition of commerce.— Embargo Act, 1807. — 
Japan's policy of non-intercourse. — Opposition to the embargo. 

References. — Cooley, Constitutional Law, 68; Channing, Stu- 
dents' History of the United States, 350; McLaughlin, History of the 
American Nation, 274. 

6o. Citizens and Citizenship. — Congress can pass laws 
relating to citizenship and naturalization. In the ordinary 
sense of the term a citizen is an individual person who owes 
allegiance to a 'state and who has the right to demand 
protection from that state. Such a person may or may not 
possess political rights. Sometimes, however, only such 
persons as possess political rights are called citizens. Prop- 
erly, each of these two classes of persons, namely, those who 
have political rights and those who do not have political 
rights, should have_. an independent designation. They 
might perhaps be called passive citizens and active citizens; 
for the members of one class are passive under the protection 
of the government, while the members of the other class 
participate actively to a greater or less extent in the con- 
duct of the government itself. Any person who was one 
of the people of any one of the States when the Constitution 
was adopted became, ipso facto, a citizen. Additions to this 
number have been made and may still be made in two ways : 
first, by birth; second, by naturalization. 

1. Citizens by birth are persons who are born in the 
United States and who continue to live under its jurisdiction 
till they are of age. 

2. Citizens by naturalization are persons who were born 
subject to the jurisdiction of a foreign power, and who have 



118 THE GOVERNMENT OF THE UNITED STATES 

had conferred upon them the essential rights, privileges, 
and prerogatives of citizens born in the country of their new 
residence. 

Congress has power to naturalize aliens, which means 
that Congress has power to receive an alien into the condi- 
tion of a citizen, and to invest him with the rights and privi- 
leges of a natural citizen. Each sovereign state in confer- 
ring citizenship establishes the terms under which this status 
is held by the person receiving it. If a person in whose 
native country it is maintained that citizenship is inalien- 
able, is naturalized in the United States, there arises at once 
a conflict of authorities. This conflict has often arisen be- 
tween the United States and other nations. Formerly Eng- 
lish judges insisted that no English subject could lay aside 
his obligation of allegiance except by the consent of the Eng- 
lish Government. The President of the United States has, 
however, held that naturalization in the United States re- 
leases the person naturalized from all allegiance to his na- 
tive country. The practical opposition of these views has 
been manifest on several occasions. In the War of 1812 
Englishmen, naturalized in the United States, who were 
taken in arms against England were regarded as traitors. 
Irishmen, naturalized in the United States, have often shown 
their hostility to England and have been tried in England 
as if they were still subjects of Great Britain. The repre- 
sentatives of the United States have, in these cases, insisted 
that they were unable to distinguish between naturalized 
and native citizens, but, at the same time, have acted under 
instructions not to interfere in behalf of persons who had 
become naturalized and had practically abandoned their 
new citizenship, while, at the same time, relying on it to 
protect them in the prosecution of treasonable designs 
against the government of their native country. The views 
represented by England and the United States appeared 
to be irreconcilable. Then, in 1868, Congress declared that 



WHAT CONGRESS CAN DO 119 

"expatriation is a natural and inherent right of all peo- 
ple, indispensable to the enjoyment of the rights of life, lib- 
erty, and the pursuit of happiness"; and pronounced the 
denial, restriction, impairment, or questioning of the right 
of expatriation by an officer of the United States to be in- 
consistent with the fundamental principles of the Republic. 
The view here expressed has been accepted by other civil- 
ized nations. In treaties between the United States and 
a number of European nations, including Austria, Great 
Britain, the German Empire, Belgium, Norway and Sweden, 
and Denmark, it is maintained: 

1. That naturalization in accordance with the laws of 
the adopted country, after a residence of five years, shall 
free the naturalized person from his native allegiance.' 

2. That the simple declaration of intent to become a 
citizen shall not have the effect of naturalization. 

3. That a renewal of domicile in the mother country 
with the intent not to return shall work a renewal of the 
former allegiance; and two years' residence is presumptive 
evidence of such intent. 

At least two years before a person may be naturalized, 
he is required to declare on oath that he wishes to become 
a citizen of the United States. At the same time he is 
required to renounce allegiance to any foreign sovereign, 
and to declare that he will support the Federal Constitution. 
When finally he presents himself for admission to citizenship, 
the court admitting him must have satisfactory evidence 
that he has resided five years in the United States and one 
year in the State or Territory where the court is held; and 
that he has maintained during his residence the proper 
conduct of a citizen. What change of status has been made 
by the process of naturalization may be discovered by con- 
sidering that as an alien he remained in the country only 
by sufferance; and that, while many of the States permitted 
him to hold and to convey real estate, he had no political 



i20 THE GOVERNMENT OP THE UNITED STATES 

rights. After his naturalization, however, he became en- 
titled to all the rights and privileges which any citizen of 
the country enjoys. Moreover, as a citizen of a State, he 
is "entitled to all the privileges and immunities of citizens 
of the several States." Among the privileges and immuni- 
ties of State citizenship are protection by the government, 
the enjoyment of life and liberty, the right to acquire and 
possess property of every kind, the right to pursue and 
obtain happiness and safety. The citizen of a State is 
nevertheless subject to such restraints as the government 
may prescribe for the general good. The citizen of a State 
also enjoys the right to pass through or to reside in any 
other State. He may claim the benefit of the writ of 
habeas corpus; he may institute and maintain actions of 
every kind in the courts of the State; and he may take, 
hold, and dispose of property. 

Besides citizenship in a State, to which reference has just 
been made, there is also citizenship in the Union. Both 
may be enjoyed by the same person. As a citizen of a State 
and at the same time of the United States, one may claim 
protection from both the State and the Federal govern- 
ments, and in return one owes allegiance to the two gov- 
ernments. The citizen of the United States is at the same 
time a citizen of a State. Residents in the Territories or 
in other places exclusively under the jurisdiction of the 
United States are merely citizens of the Union. They owe 
no allegiance to any State, and they look only to the United 
States for protection. 

The following cases are special cases under the law of 
citizenship and naturalization: 

1. Children of citizens, although born abroad, shall be 
considered citizens. 

2. Children of naturalized persons, if less than twenty- 
one years old when their parents are naturalized, shall be 
considered citizens if they reside in the United States. 



WHAT CONGRESS CAN DO 121 

3. Minors coming into the United States and residing 
here three years before becoming twenty-one years old may 
be considered citizens, without previous declaration, after 
a residence of five years. 

4. A woman who might be naturalized, marrying a 
citizen, shall be considered a citizen. 

5. If an alien who has declared his intention to become 
a citizen dies before he has been fully naturalized, his widow 
and children shall be considered citizens on taking the oath. 

6. Soldiers at least twenty-one years old, honorably 
discharged from the army of the United States, may become 
citizens after one year's residence, without declaration of 
intention. 

7. Sailors having served three years on a United States 
ship may be regarded as citizens, after making a declara- 
tion. 

8. Five consecutive years of service in the navy of the 
United States admits to citizenship without previous decla- 
ration of intention. 

Topics. — Definition of citizen. — Definition of political rights. — 
Two meanings of the term "citizen," as generally used. — Conflict 
of laws supposed to affect a naturalized citizen. — Attitude of the 
United States shown in treaties. — Process of naturalization. — Privi- 
leges and immunities of a naturalized citizen. — Citizen in a State 
and in the United States. — Special cases, under law, of citizenship 
and naturalization. 

References. — Ford, American Citizen's Manual, Part II, 39-44; 
Hinsdale, American Government, 215-217; Miller, Lectures, 275,276. 

6i. Bankruptcy. — At the time of the formation of the 
Constitution the general subject of bankruptcy in English 
law embraced both bankruptcy and insolvency. The former 
applied to traders, the latter to persons imprisoned for debt, 
but asking for a discharge from prison upon surrender of all 
their property. Since 1840 this distinction has not pre- 
9 



122 THE GOVERNMENT OF THE UNITED STATES 

vailed in the United States, except that a person who is 
unable to pay his debts is termed insolvent and, when his 
inability is declared by the proper law officer, is called a 
bankrupt. Congress can establish "uniform laws on the 
subject of bankruptcy throughout the United States"; but, 
when no such uniform laws exist, the States are at liberty 
to pass bankruptcy laws applicable within their limits. 
Under a general bankruptcy law, residents of the States 
may receive the benefit of the exemption laws of the States 
in which they reside. The first United States bankrupt law 
was in force from June 2, 1800, to December 19, 1803; the 
second, from February 1, 1842, to March 3, 1843; the third, 
from June 1, 1867, to September 1, 1878; the fourth was 
enacted in 1898. Under the bankrupt law a person is 
relieved from obligations that can be legally enforced, but 
there are moral obligations which still bind him. Bankrupts 
have sometimes assumed that escape from legal obligations 
released them from moral obligations, and acting under this 
assumption they have found society turned against them. In 
some countries bankrupts not only lose credit but also social 
position, and the only way for them to achieve social re- 
habilitation is to redeem their outstanding promises. 

Topics. — Bankruptcy and insolvency. — General bankruptcy 
laws.-^State laws to obtain when no general law. — Position of 
debtor under bankrupt law. 

References. — Hinsdale, American Government, 217, 218;Lalor, 
Cyclopaedia, i, 223. 

62. Coining Money. — Congress can coin money. It can 
thus provide for a uniform currency for the whole country. 
In exercising this power to coin money the Government 
determines the amount and kinds of metal that shall con- 
stitute the different coins, and stamps pieces of metal with 
words and figures which indicate the names and weight of 
the several pieces. While the denomination of the coin is 



WHAT CONGRESS CAN DO 123 

fixed by the Government, its value, that is to say, its power 
to purchase, is fixed by the operations of the market. This 
is particularly true of the standard coin. A token coin, 
such as the half-dollar, is worth half as much as a gold 
dollar, although the silver in it is worth, as bullion, less than 
half as much as the gold in a gold dollar. The coin is worth 
half of a dollar because the law requires that two of these 
shall be exchangeable with the gold dollar. Usually the 
amount of the token money that may be given at any one 
time in the payment of a debt is limited 'by law. The 
token coin, then, differs from the standard coin in that the 
bullion of which it is composed is worth less than the 
amount indicated on the face of the coin. 

Although the real value of a coin is fixed in the market, 
yet the Government may fix the amount of metal which it 
shall contain and by so doing cause its market value to vary. 
In dealing with foreign coins, moreover, the Government 
may establish the ratio which such coins shall hold to the 
domestic coins; that is to say, at what rate the foreign coins 
shall be received at the custom house or in payment for 
public lands. 

Topics. — The right to coin money affected by the Constitution. 
— Part played by Government in coining. — Government and foreign 
coins. — Value of coins. 

References.— Ford, American Citizen's Manual, Part II, 172- 
184; Hart, Actual Government, 496; Hinsdale, American Govern- 
ment, 202-211, 218, 219; Lalor, Cyclopaedia, i, 507. 

63. Treasury Notes. — In the time of the Civil War, when 
the Government was greatly in need of money to meet its 
enormous expenses, Congress authorized the use of treasury 
notes in the payment of debts contracted by the Govern- 
ment. These notes were issued in great numbers and con- 
stituted the bulk of the money in circulation in the United 
States for several years. An act was also passed by Con- 



124 THE GOVERNMENT OP THE UNITED STATES 

gress making these notes legal tender. Owing, perhaps, to 
the fact that there was no clause in the Constitution which 
seemed to furnish specific authority for this action, the 
question of its constitutionality was several times brought 
to the attention of the Supreme Court; and it was finally 
decided by that body " that the impressing upon the treasury 
notes of the United States the quality of being a legal 
tender in payment of private debts is an appropriate means, 
conducive and plainly adapted to the execution of the 
undoubted powers of Congress, consistent with the letter 
and spirit of the Constitution, and therefore, within the 
meaning of that instrument, 'necessary and proper for the 
carrying into execution the powers vested by this Constitu- 
tion in the Government of the United States. " : 

Money is said to be a legal tender when the law authorizes 
it to be tendered in payment of debts. In authorizing the 
issue of money that is to constitute a part of the lawful 
circulating medium of the country, Congress declares it 
to be lawful money and a legal tender. When paper money 
was issued by the Government during the Civil War, Con- 
gress declared that the " United States notes shall be lawful 
money, and a legal tender in payment of all debts, public 
and private, within the United States, except for duties 
on imports and interest on the public debt." Essentially 
the same legal declaration is made with respect to the gold 
and silver money of the United States. Any money that 
has thus been made by law a legal tender may be offered in 
payment of debts; and the creditor has no right to refuse 
it and demand another kind of money, unless it has been 
especially provided in a contract with him that he shall be 
paid in some specified kind of money or the issue of some 
specified date. 

Topics. — Treasury notes authorized by Congress. — Question of 
constitutionality of the act. — Decision of the Supreme Court. — Defi- 
nition of legal tender. 



WHAT CONGRESS CAN DO 125 

References. — Hart, Actual Government, 497-499; Hinsdale, 
American Government, 199-202; Lalor, Cyclopaedia, i, 222 ; iii, 960. 

64. Counterfeiting. — In order to render effective and 
exclusive the authority of the Federal Government to coin 
money, Congress is empowered " to provide for the punish- 
ment of counterfeiting the securities and current coin of the 
United States." Under this power, Congress has declared 
that any person, not authorized by law, who shall make or 
cause to be made, or shall attempt to issue or pass any coins 
of gold or silver, whether in the semblance of the coins of the 
United States or of foreign countries, shall be punished by 
fine not exceeding $5,000 and by imprisonment for a term 
not exceeding ten years. For counterfeiting the minor coins 
the fine shall not exceed $1,000, and the imprisonment shall 
not exceed three years. This prohibition applies also to the 
counterfeiting of paper money that has been issued by the 
Government. 

Topics. — Definition of counterfeiting. — Prohibition by Congress. 
References. — Hinsdale, American Government, 219, 220. 

65. Post Offices and Post Roads. — Congress can "estab- 
lish post offices and post roads." Any route within a State, 
whether on land or water, over which mails are transported 
under the law of Congress or by order of the Post-Office De- 
partment, is a post road. Was it intended that the power here 
conveyed should be limited to designating routes over which 
the mails should be carried ? Judge Cooley has answered 
this question with the statement that " the power to establish 
post offices includes everything essential to a complete postal 
system under Federal control and management, and the 
power to protect the same by providing for the punishment, 
as crimes, of such acts as would tend to embarrass or defeat 
the purposes had in view in their establishment." l 

1 Cooley, Constitutional Law, 83. 



126 THE GOVERNMENT OF THE UNITED STATES 

Topics. — Describe the business of the post office. — Definition 
of a post road. — Extent of power of Congress in this matter. 

References. — Ford, American Citizen's Manual, Part II, 44-48; 
Hinsdale, American Government, 221,222; Lalor, Cyclopaedia, iii, 
310. 

66. Copyrights and Patents. — In case a person has in- 
vented a new machine for which there is a demand, or written 
a book that may be sold, he has created a kind of property 
that does not consist wholly in the materials of which the 
machine or the book is made. The ideas and literary form 
of the book are results of his labor and make it valuable. 
They are his property. The new application of mechanical 
principles and the peculiar combination of the parts of a 
machine — in a word, the ideas involved in the machine — give 
it its special value. After the machine has been made, or 
the book has been written and published, it may be very 
easily copied; and thus the inventor or the writer may be 
deprived of the product of his labor. In order, therefore, 
to enable the writer and the inventor to hold undisturbed 
possession of the products of their labors, Congress is em- 
powered to secure " for limited times, to authors and inven- 
tors, the exclusive right to their respective writings and 
discoveries." A copyright is obtained by sending to the 
Librarian of Congress the title and, within two weeks from 
the date of issue, two copies of the publication in question. 
A fee of $1 is paid for securing a copyright. A renewal is 
obtained in the same manner, but application must be made 
within six months before the expiration of the first term. 
To obtain a patent, application must be made to the Com- 
missioner of Patents, in accordance with the prescribed 
form. This application is accompanied by a description 
of the invention. A fee of $15 is required on filing the 
application and a fee of $20 is required on the issue of the 
patent. 



WHAT CONGRESS CAN DO 127 

Topics. — Definition of copyright. — Compare copyright with 
patent. — Object of copyright and patent. — Process of securing copy- 
right and patent. 

References. — Hinsdale, American Government, 222-225; Lalor, 
Cyclopcedia, iii, 123. 

67. Courts Inferior to the Supreme Court. — Congress can 
establish Federal courts. It was clearly impossible for the 
makers of the Constitution to foresee, ant provide for, every 
case where a Federal court might be needed sometime in 
the future. They were able, however, to see that one great 
central supreme court would always be required, and such a 
court they established directly by a provision of the Con- 
stitution. The language of this clause is: "The judicial 
power of the United States shall be vested in one Supreme 
Court, and in such inferior courts as the Congress may from 
time to time ordain and establish." In order to carry out 
this plan, Congress was given the authority to establish such 
inferior Federal courts as in its judgment might be needed. 

Though the Supreme Court was called into existence by 
a direct provision of the Constitution, it devolved upon 
Congress to fix the number of judges and to increase or 
diminish their number. This would render it possible for 
the President and Congress ultimately to make their own 
will prevail, if they wished to go to the disgraceful length of 
increasing the number of judgeships, and of filling them with 
partisans pledged to support the views of the President and 
Congress in a conflict between them and the court. 

Topics. — Difference between Federal and State courts. — Why 
power to establish inferior Federal courts was given to Congress. 

References. — Bryce, American Commonivealth, i, 225-236; 
Hart, Actual Government, 301-304. 

68. Piracy. — Congress can "define and punish piracies 
and felonies committed on the high seas, and offenses against 



128 THE GOVERNMENT OF THE UNITED STATES 

the law of nations." Piracy is robbery or depredation on 
the high seas. By the term "high seas" is meant all tide- 
water below low-water mark. " Piracy is the same offense 
on sea that robbery is on land"; but it is more likely to be 
committed by associations than are most forms of robbery 
on land. Pirates may be called the brigands of the sea. 
Their field is usually outside of the dominion of any nation — 
that is to say, on the sea more than three miles from any 
shore. They carry the flag of no nation, and no nation 
protects them. They are public enemies and are amenable 
to the tribunals of their captors. Laws enacted by any 
nation to suppress them are directed against a common 
enemy and are in the interest of all civilized nations. Any 
state may. proceed against pirates, although their depreda- 
tions may have been confined to the vessels or commerce 
of other states. Robbery committed on a ship belonging 
to the subjects of a foreign state by a person not a citizen 
of the United States is a crime against such foreign state, 
and is not punishable in the courts of the United States. 

Topics. — Definition of piracy. — Difference between piracy and 
robbery on land. — Usual field of pirates' operations. — Where pirates 
may be tried. 

References. — Hinsdale, American Government, 225; Lalor, 
Cyclopcedia, iii, 199. 

69. War.— Congress can declare war. When two nations 
have antagonistic purposes that cannot be reconciled by 
peaceable negotiation, there appears to be no alternative 
but a resort to force. Such a resort to force may mean 
that an attempt has been made to reach an agreement by 
mutual persuasion or compromise, and that the efforts have 
been fruitless; or it may mean an act of pure aggression, in 
which no attempt has been made to harmonize conflicting 
purposes. In either case there is no common superior who 
can make a decision by which the two nations must abide. ' 



WHAT CONGRESS CAN DO 129 

There appears, therefore, nothing else for them to do but to 
settle their differences, as their savage ancestors settled 
theirs, by a conflict in which each party gathers up all the 
force that seems to be necessary to crush his antagonist. 

The power to declare when war shall be used to this end 
by the United States has been committed to Congress; but 
war may exist between the United States and another 
nation prior to any congressional declaration on the matter. 
In 1812 Congress enacted "that war be and the same is 
hereby declared to exist between the United Kingdom of 
Great Britain and Ireland and the dependencies thereof 
and the United States of America and their Territories." 
In 1846 it was affirmed in the preamble of an act of Congress 
that "by the act of the Republic of Mexico a state of war 
exists between that government and the United States.' 5 
On the twenty-fourth of April, 1898, it was enacted "that 
war be and the same is hereby declared to exist, and that war 
has existed since the twenty-first day of April between the 
United States and Spain." In none of these cases did the 
declaration of Congress precede the beginning of hostilities. 

After the Treaty of Paris, by which the Philippine Islands 
passed under the sovereignty of the United States, a part 
of the inhabitants rose in rebellion against the authority of 
the United States. For the purpose of suppressing this 
rebellion large bodies of troops were transported to those 
islands. This was done under the orders of the President 
without any special authorization or declaration by Con- 
gress. The insurgents or persons in rebellion were never 
recognized as belligerents by any other nation, and Congress 
never declared war against them. Furthermore, in 1900, 
when the American minister at Pekin and other American 
citizens in China were the objects of a general attack in the 
Boxer outbreak, several regiments were sent to China with 
a view of protecting the lives of Americans and American 
interests. These cooperated with the allied forces sent by 



130 THE GOVERNMENT OF THE UNITED STATES 

Japan, Germany, France, Russia, and England; but the 
participation of the United States in this undertaking was 
simply by direction of the President. Congress made no 
declaration in the matter and issued no special authoriza- 
tion for carrying on the war. It would thus appear that 
although Congress is empowered to declare war, most of the 
wars carried on by the United States have been begun with- 
out a congressional declaration. 

Topics. — Meaning of declaration of war. — By whom made. — 
War without declaration. — Instances. — Rebellion in the Philippine 
Islands. — Expedition to Pekin, 1900. 

References.— Ford, American Citizen's Manual, Part II, 21- 
29; Hart, Actual Government, 474-477; Hinsdale, American Govern- 
ment, 226. 

70. Letters of Marque. — Congress can grant letters of 
marque. It sometimes happens that members of one nation 
suffer an injury at the hands of members of another nation, 
for which they are not able to obtain redress either from the 
persons inflicting the injury or from the government claim- 
ing jurisdiction over such persons. In cases like this, or in 
war where persons concerned have no private grievances, 
governments have, in some instances, authorized private 
persons to go upon the high seas to take the persons or prop- 
erty of the enemy or of the members of that nation from 
which the injury has proceeded. The authorization in such 
a case is conveyed in a commission called a letter of marque. 
These undertakings are known as privateering and have been 
recognized by international law. Before some of the nations 
had established permanent public navies, this practice was 
useful, as private war on land was useful before a national 
army or a public police force was organized. With the 
growth of more reasonable international relations there has 
been manifested a disposition to abolish privateering, so 
that the power of Congress to grant letters of marque is a 



WHAT CONGRESS CAN DO 131 

power of diminishing importance. The first article of the 
Declaration of Paris, 1856, affirms that " privateering is and 
remains abolished." Most of the leading civilized nations 
have accepted this declaration; that is, they will not engage 
in privateering. The signatory powers were Great Britain, 
France, Russia, Austria, Sardinia, Prussia, and Turkey. 
Spain, Mexico, and the United States agreed in rejecting the 
rule abandoning the practice of privateering. 1 

Topics. — Definition of letter of marque. — Privateering. — Dec- 
laration of Paris, 1856, on privateering. 
References. — Lalor, Cyclopedia, iii, 361. 

71. The Army. — Congress can raise and support armies. 
The fact that armies are organized under the principle of 
absolutism has led modern liberal states to be jealous 
of military authority. This jealousy, has, moreover, been 
strengthened by the history, in other nations, of military en- 
croachments on the civil authority. The existing Govern- 
ment has not the military weakness of the Government under 
the Articles of Confederation, and it keeps the army subject 
to legislative authority. No appropriation of money for the 
support of the army shall be for a term longer than two years. 

1 The plenipotentiaries who signed the Treaty of Paris, 1856, as- 
sembled in congress at Paris " adopted the following solemn declara- 
tion": 

1. Privateering is and remains abolished; 2. The neutral flag covers 
enemy's goods, with the exception of contraband of war; 3. Neutral 
goods, with the exception of contraband of war, are not liable to capture 
under enemy's flag; 4. Blockades, in order to be binding, must be 
effective — that is to say, maintained by a force sufficient really to 
prevent access to the coast of the enemy. 

The Congress of Paris, here referred to, was a meeting of represen- 
tatives of the powers that had been involved in <the Crimean War, and 
the Treaty of Paris, signed March 30, 1856, closed that war. About 
two weeks after signing the treaty the members of the congress, seeing 
the need of rules to control the shipping of goods in time of war, signed 
this declaration, which has become a part of international law. 



132 THE GOVERNMENT OF THE UNITED STATES 

In case, therefore, the Executive should wish to maintain 
a larger army than should seem desirable to Congress, this 
body might make its will effective by withholding funds 
needful for the army's support. 

By an act of Congress approved April 22, 1898, the 
military forces of the United States are declared to consist 
of all able-bodied men between eighteen and forty-five years 
of age. This means that all citizens embraced in this de- 
scription are liable to military service in case they are needed 
to defend the interests of the nation or to carry out the 
purposes of the Government. The regular army, however, is 
only a very small part of this number. After the Civil War 
it was reduced to 27,000 men. In 1898 it was increased to 
60,000; and in 1899, to 65,000, with a temporary volunteer 
force of 35,000. In 1901 it was provided that the number 
of enlisted men should not exceed 100,000; and that there 
should be one lieutenant general, six major generals, fifteen 
brigadier generals, and such other officers as are demanded 
for the proper organization of the army. 1 

1 The officers of the army and navy are appointed by the President. 
These officers are as follows: 

Army Navy 

General Admiral 

Lieutenant general Vice admiral 

Major general Rear admiral 
Brigadier general 

Colonel Captain 

Lieutenant colonel Commander 

Major Lieutenant commander 

Captain Lieutenant > 

First lieutenant Lieutenant, junior grade 

Second lieutenant Ensign 

The office of general, superior to that of major general, was 
created for Washington by Congress, March 3, 1799. After his death 
it rrmained vacant until 1802, when it was abolished. It was revived 
for General Grant in 1866, and three years later it was conferred on 
W. T. Sherman. It was allowed to lapse on Sherman's retirement in 
1883, but was revived again for Sheridan. On Sheridan's death it was 



WHAT CONGRESS CAN DO 133 

Topics. — Organization of armies. — Appropriations for support 
of army. — Military forces of the United States. — Regular army. — 
Officers of the army. 

References. — Hart, Actual Government, 462-466; Hinsdale, 
American Government, 227; Lalor, Cyclopedia, iii, 1016. 

again dropped. At present the highest officer in the army is known as 
the chief of staff. 

In the United States navy the office of admiral was created in 
1866 for Farragut. At the death of Admiral Porter in 1891, the titles 
of vice admiral and admiral were abolished. The title of admiral was, 
however, recreated in 1899 and conferred upon George Dewey. 

Instruction preparatory to entrance into the army as second lieu- 
tenant or into the navy as ensign is furnished by the Military Acad- 
emy at West Point or the Naval Academy at Annapolis. The body 
of cadets at the Military Academy consists of one from each con- 
gressional district, one from each Territory, one from the District of 
Columbia, and ten from the United States at large. The cadets are 
appointed by the President, and when appointed must be between 
seventeen and twenty-two years of age. With the exception of the 
ten at large, they must reside in the State, Territory, or district for 
which they are severally appointed. The cadets are paid by the 
Federal Government, but "no cadet shall receive more than at the rate 
of $540 a year." They are organized into four companies, and each 
company is commanded by an officer of the army. After a cadet has 
completed the required studies of the classes he may be commissioned 
as a second lieutenant. In case of vacancies the President may appoint 
persons not graduates of the Military Academy to be second lieutenants. 

At the Naval Academy the students are called naval cadets. The 
number is one for each member or delegate of the House of Representa- 
tives, one for the District of Columbia, and ten appointed at large. 
The naval cadets at large and the one from the District of Columbia are 
appointed by the President. Of the others, each member and delegate 
of the House of Representatives nominates, in writing, one resident of 
his district; and if no nomination is made for any given district, in case 
of vacancy, within a specified time, the Secretary of the Navy makes 
the appointment without such nomination. The academic course for 
naval cadets is six years, and the cadets at the time of their admission 
must be between the ages of fourteen and eighteen years. After 
graduation they may be appointed to the lower official grades in the 
navy or marine cox-ps. 



134 THE GOVERNMENT OF THE UNITED STATES 

72. The Militia. — Congress can call the militia into 
active service. The militia is a military force organized by 
the several States, and consists of such persons in the States 
as are liable to military duty. The officers are appointed 
by the States. The force is primarily subject to the order 
of the governor of the State in which it is organized, and 
may be used in suppressing local riots or other disturbances 
of the public peace when, in the opinion of the proper 
authorities, the regularly constituted police is unable to per- 
form the task. It may, however, be brought into the serv- 
ice of the Federal Government; for Congress may "provide 
for calling forth the militia, to execute the laws of the Union, 
suppress insurrections, and repel invasions." In making 
provision for calling forth the militia, Congress may confer 
this power upon the President. This makes him the ex- 
clusive judge of the need of making the call and renders 
anyone refusing to obey the call, when made, liable to punish- 
ment under military law. Congress may also " provide for 
organizing, arming, and disciplining the militia, and for 
governing such part of them as may be employed in the 
service of the United States, reserving to the States respec- 
tively the appointment of the officers, and the authority-of 
training the militia according to the discipline prescribed by 
Congress." Although the militia is organized by the States, 
and the officers are appointed by the same authority, yet, 
having been called into the service of the United States, 
this branch of the army is subject to the orders of the Presi- 
dent as commander in chief, as well as to the orders of any 
officer of the regular army ranking the officers of the militia 
who may be placed in command. By these provisions it 
is made clear that the Federal Government is supreme in 
everything relating to war. This fact is further emphasized 
by the constitutional provision that no State shall enter 
into any treaty, alliance, or confederation, or grant letters 
of marque and reprisal; and that no State, without the 



WHAT CONGRESS CAN DO 135 

consent of Congress, shall keep troops or ships of war in time 
of peace, or enter into any agreement or compact with 
another State or with a foreign power; or engage in war 
unless actually invaded, or in such imminent danger as will 
not admit of delay. This prohibition concerning troops 
does not refer to the militia, but to a standing army. It is 
expected that the States will enroll, officer, equip, and in- 
struct the militia. This reference to treaties and alliances 
does not mean that Congress may authorize a State to form 
treaties or alliances with foreign States; for such treaties 
and alliances are strictly prohibited by the Constitution. 
The agreements or compacts here referred to are such as 
may be made for certain temporary purposes, and are dis- 
tinct from the permanent alliances or confederations that 
are involved in international relations. 

In connection with other provisions relating to the militia 
may be read that contained in the second amendment to the 
Constitution, which declares that "a well-regulated militia 
being necessary to a free State, the right of the people to 
keep and bear arms shall not be infringed." This amend- 
ment appears to have its antecedent in the English Bill of 
Rights. The fundamental purpose of the original English 
declaration was to secure to the people the right to be 
armed and prepared to resist the encroachments of a more or 
less antagonistic crown and standing army. As a means of 
popular defense against the established authorities of the 
central Government, and particularly against possible acts 
of injustice by a standing army, it recommended itself to the 
jealous inhabitants of the United States. What is intended 
in the last clause of the amendment is a general right of the 
people to keep arms and to become proficient in their use, 
in order that if the occasion should demand it they might 
become effective members of a popular army to defend 
themselves against invasion, internal disturbance, or un- 
lawful oppression, and to make unnecessary such a standing 



136 THE GOVERNMENT OF THE UNITED STATES 

army as might be dangerous to the liberties and the demo- 
cratic spirit of the nation. 

The militia has been called into the service of the national 
Government three times: (1) at the time of the insurrection 
known as the " Whisky Rebellion "; (2) in the War of 1812; 
(3) in the Civil War. In the war with Mexico and in the 
war with Spain the soldiers that were added to the regular 
army from the several States were received as volunteers, 
although many of them had previously belonged to the 
militia. 

Topics. — Definition of the militia. — Appointment of the officers. 
— For what purposes used. — In the service of the United States. — 
Federal supremacy in military affairs. — Right to bear arms. 

References. — Hart, Actual Government, 472-474; Hinsdale, 
American Government, 229, 230. 

73. The District of Columbia. — Congress can make laws 
for the District of Columbia. In 1788 Maryland ceded to 
the Federal Government a tract of land lying east of the 
Potomac, and in 1789 Virginia ceded another tract west of 
the Potomac. These two tracts made up the District of 
Columbia, ten miles square. The latter part was retroceded 
to Virginia in 1846, leaving the area of the District as it is 
at present, about sixty-four square miles. In the District 
of Columbia the government is carried on under Congress. 
This government is in marked contrast with that existing 
generally in the States. With the exception of a brief 
period, the District has always been governed directly by 
Congress; and thus the people have been subject to a legis- 
lative body which they had no part in creating. The ex- 
ception refers to the period between 1871 and 1874, when 
there existed a territorial government, consisting of a gov- 
ernor, a secretary, a council or upper legislative house, a 
board of health, and a board of public works, appointed by 
the President. There was, moreover, a house of delegates 



WHAT CONGRESS CAN DO 137 

elected by the people. This territorial form of government 
was set aside in 1874, and the District was placed under a 
board of three commissioners, two appointed by the Presi- 
dent, and the third, an officer of the corps of engineers of 
the army, detailed by the President. The subordinate 
municipal officers of the District as at present organized are 
appointed by the commissioners. The revenues are de- 
rived from two sources, one-half from the Federal treasury, 
appropriated by Congress, and the other half from a tax 
on the assessable property of the District. 

Topics. — Laws for the District of Columbia. — The land of the 
District. — The government. — Period of territorial form. — Revenues 
of the District. 

References. — Hinsdale, American Government, 230-232; Hart, 
Actual Government, 124, 334, 355-356; Bryce, American Common- 
wealth, ii, 646. 

74. Treason. — Congress can provide punishment for 
treason. The Constitution has specifically defined treason 
as consisting in levying war against the nation or in adhering 
to its enemies, giving them aid and comfort. Merely plan- 
ning to make war or conspiring to overthrow the Govern- 
ment is not treason. War must be actually undertaken. 
When such war has been begun, then all persons who take 
any part in it, however small, are guilty of treason. The 
testimony of two witnesses or a confession in open court is 
necessary for conviction of this offense. Congress is author- 
ized to declare the punishment for treason; but in granting 
this authority the Constitution places certain limitations 
on it : it provides that " no attainder of treason shall work 
corruption of blood or forfeiture except during the life of the 
person attainted." By this limitation on the power of 
Congress to fix punishment for treason, the continuance of 
the cruel punishments that had attended conviction of 
treason in England were made impossible. 
10 



138 THE GOVERNMENT OF THE UNITED STATES 

Topics. — Definition of treason. — Witnesses necessary for con- 
viction of treason. — Constitutional limitation of punishment for 
treason. 

References. — Lalor, Cyclopaedia, iii, 932; Cooley, Constitutional 
Law, 91, 287, 288; Hart, Actual Government, 578. 

75. Implied Powers. — Besides being authorized to do 
those things that are particularly specified, Congress can 
do all those other things that are necessary to enable it to 
exercise completely and efficiently the powers that are 
expressly conferred upon it. The powers of Congress that 
are not particularly specified are called the implied powers. 
The reason for the existence of the implied powers is found 
in necessity, in the impossibility of making the Constitution 
" contain an accurate detail of all the subdivisions of which 
its great powers will admit, and of all the means by which 
they may be carried into execution." 1 A constitution is 
not a detailed code, but is a general law which sketches in 
outline the government created by it, and makes clear the 
important objects to be attained. By specifying an object 
to be reached, it is presumed to authorize whatever means 
are necessary to attain this object. In other words, the 
Government is expected to carry out the orders involved in 
the Constitution, and to execute the powers that have been 
specifically granted to it; and "Congress may make any 
law, not by the Constitution expressly or impliedly pro- 
hibited, which it should deem conducive to the execution 
of any express power." 2 

The general theory of implied powers may be readily 
accepted; but difficulty arises when it is proposed to make 
a specific application of the theory. The political party 
actually controlling the Government usually takes a liberal 
view of its authority, while the party that is not in power is 

1 McCulloch vs. State of Maryland, 4 Wheaton, 316. 

2 Cooley, Constitutional Law, 93. 



WHAT CONGRESS CAN DO 139 

disposed to hold to the strict reading of the Constitution. 
The party that insists on construing the Constitution strictly 
is called the " Strict Construction " party. There have been 
instances where Congress has done things that would not 
seem to be authorized by a strict adherence to the letter of 
the Constitution. It was thought that the laying of an un- 
limited embargo on commerce in 1807 was such an instance. 1 
The purchase of Louisiana in 1803 and its subsequent ad- 
mission into the Union were said to be acts not warranted 
by any express grant of power to Congress. 2 

The existence of implied powers leaves Congress to de- 
cide, in the first instance, whether it may or may not take a 
certain proposed action under these powers. Like an in- 
dividual person, Congress is likely to resolve all reasonable 
doubts in its own favor. This means that without external 
check Congress will be disposed to extend its power more 
and more — in other words, to expand the Federal as op- 
posed to State authority. There is, however, a certain check 
on congressional discretion. It remains for the Supreme 
Court to decide whether any particular law passed by Con- 
gress is warranted under the rule of implied powers. But 
the Supreme Court is a part of the Federal Government; and 
in accordance with the principle under which Congress is 
presumed to act, it may be expected in the long run to give 
the Federal instead of the State government the benefit 
of such reasonable doubts as may arise with respect to 
the limits of Federal and State authority. And what might 
be expected under this rule has been realized in the history 
of the Government of the United States and in the history of 
all similar governments that have reached the Federal stage: 
they have continued to magnify the central Government as 
compared with the provincial or State governments; they 
have strengthened and tightened the bonds of union. 

1 See §59. 2 See §89: 1. 



140 THE GOVERNMENT OF THE UNITED STATES 

Topics. — Definition of implied powers. — Reason for implied 
powers.— Constitutional provision on this subject.— Attitude of 
party in control of Government toward implied powers. — "Strict 
construction party." 

References. — Hinsdale, American Government, 232-235; Lalor, 
Cyclopaedia, i, 612. 

76. Alien and Sedition Laws. — Among the noteworthy 
instances of exercise of implied powers are the Alien and 
Sedition Laws. The Alien Law was approved June 25, 
1798, and authorized the President to order out of the coun- 
try such aliens as he should deem dangerous to the peace 
and safety of the United States, or should have reasonable 
grounds to suspect to be concerned in any treasonable or 
secret machinations against the Government. For disobe- 
dience to this order it imposed severe penalties. 

The Sedition Law was approved July 14, 1798. It made 
it a crime for any persons unlawfully to combine with intent 
to oppose any measures of the Government of the United 
States, or to impede the operation of any law of the United 
States. It fixed as punishment for this crime a fine not 
exceeding $5,000, and imprisonment for from six months to 
five years, binding to good behavior at the discretion of the 
court. Any person who should intimidate an officer of the 
Government and thus prevent him from fulfilling the duties 
of his position was subject to the same punishment; also 
anyone advising or attempting to create a riot, unlawful 
assembly, or combination. Any person who should print 
or publish any false, scandalous, and malicious writings 
against the Government of the United States was subjected 
to a fine not exceeding $2,000, and imprisonment not ex- 
ceeding two years. The same punishment was to be imposed 
upon anyone who should encourage the hostile designs of 
any foreign nation against the United States. 

The practical carrying out of this very liberal view of the 



WHAT CONGRESS CAN DO 141 

implied powers was not allowed to pass without a vigorous 
protest. This protest found expression in the Kentucky 
and Virginia resolutions. 

Topics. — Alien law, June 25, 1798. — Sedition law, July 14, 
1798. — Intimidating an officer. — Encouraging hostile designs against 
the United States. — Protest in Kentucky and Virginia resolutions. 

References. — Lalor, Cyclopaedia, i, 56-58; Cooley, Constitu- 
tional Law, 94-97. 

77. The Kentucky and Virginia Resolutions. — The pas- 
sage of the Alien and Sedition laws persuaded the advo- 
cates of strict construction that the rights and powers of 
the States were in danger of undue limitation by the action 
of the Federal partyin seeking to magnify the implied powers 
of Congress. To set aside this supposed danger and to 
define the relative powers of the State and the Federal 
governments the Kentucky and Virginia resolutions were 
passed. The Kentucky resolutions declared that the Con- 
stitution was a compact between the States and the Govern- 
ment founded by it; and that " this Government, created by 
this compact, was not made the exclusive or final judge of 
the extent of the powers delegated to itself, since that would 
have made its discretion, and not the Constitution, the 
measure of its powers; but that, as in all other cases of 
compact among parties having no common judge, each 
party has an equal right to judge for itself as well of infrac- 
tions as of the mode and measure of redress." The legis- 
lature of Virginia, in passing the Virginia resolutions, 
asserted its firm attachment to the Constitution, and an- 
nounced a determination to support it. At the same time it 
viewed " the powers of the Federal Government as resulting 
from the compact to which the States are parties, as limited 
by the plain sense and intention of the instrument constitut- 
ing that compact, as no further valid than they are author- 
ized by the grants enumerated in that compact; and that, 



142 THE GOVERNMENT OF THE UNITED STATES 

in case of a deliberate, palpable, and dangerous exercise of 
other powers not granted by the said compact, the States 
who are the parties thereto have the right and are in duty 
bound to interpose for arresting the progress of the evil, 
and for maintaining within their respective limits the 
authorities, rights, and liberties appertaining to them." 1 
These second resolutions declared that the several States 
were sovereign and independent, and that they might nullify 
any acts of the Federal Government that were done in viola- 
tion of their avowed position. 

In spite of this protest, persistently asserted and em- 
phasized by the arguments of a political party for seventy 
years, the more liberal view of the powers of Congress has 
prevailed. 

Topics. — Occasion of the Kentucky and Virginia resolutions. — 
Declaration of Kentucky resolutions. — Statement of Virginia reso- 
lutions. — What is meant by "nullification" in this connection. 

References. — Lalor, Cyclopcedia, ii, 672. 

78. Restrictions on the Powers of Congress. — Any power 
reserved to the States is in the nature of a restriction on 
the powers of Congress. The long discussion in the United 
States as to the rights of the States and the powers 
of the Federal Government is evidence of the difficulty of 
drawing a practical line of separation between the sphere 
of the States and the sphere of the Federal Government. 
There are, however, certain clearly defined restrictions on 
the powers of Congress; and some of these apply generally 
to legislative bodies. No legislative body, for instance, 
created by an act of the sovereign, may delegate to another 
department of the Government or to another body its power 
to make laws. It appears, however, to be within the com- 
petence of the constitution-making body either to act di- 

1 Elliott's Debates, iv, 528 



WHAT CONGRESS CAN DO 143 

rectly with respect to any given subject, or to leave it to 
be dealt with through an act by the legislative body. Al- 
though Congress may not delegate its legislative power to 
the President, it may authorize him to determine in what 
cases a particular law shall apply. In suspending the writ 
of habeas corpus in the Civil War, Congress " empowered the 
President to exercise his judgment and supersede the writ 
in particular cases, as he might deem the public interest to 
require." 1 

No sovereign can bind itself for the future, nor can a 
legislature in any way limit its successor. This means that 
any law which a legislature may pass is subject to repeal 
by any succeeding legislature. All laws are, therefore, 
repealable. 

The ninth section of the first article of the Constitution 
contains a number of specific restrictions on the powers of 
Congress : 

1. That Congress shall not prohibit the importation of 
slaves prior to the year 1808. 

2. That the privilege of the writ of habeas corpus 2 shall 
not be suspended unless, when in cases of rebellion or in- 
vasion, the public safety may require it. 3 . 

3. That no bill of attainder or ex post facto law 4 shall be 
passed. 

4. That no capitation or other direct tax 5 shall be laid 
except under certain specified conditions. 

5. That no tax or duty shall be laid on articles exported 
from any State. 

6. That no preference shall be given by any regulation 
of commerce or revenue to the ports of one State over those 
of another; nor shall vessels bound to, or from, one State 
be obliged to enter, clear, or pay duties in another. 

1 Cooley, Constitutional Law, 98. 

2 See p. 218. 3 See § 128. 
4 See § 126. 5 See § 51. 



144 THE GOVERNMENT OF THE UNITED STATES 

7. That no money shall be drawn from the treasury, but 
in consequence of appropriations made by law. 

8. That no title of nobility shall be granted by the United 
States. 

These and other restrictions on Federal power, contained 
in the amendments to the Constitution, partake of the nature 
of a bill of rights or of constitutional guarantees for the 
protection of individual citizens or the States. 

Topics. — Character of restrictions on power of Congress. — No 
legislative power delegated. — Specific restrictions in ninth section 
of first article of the Constitution. 

References. — Hinsdale, American Government, 236-242; Wil- 
loughby, Rights and Duties, 198-200. 

FOR ADVANCED STUDY 

The Debts of the Confederation, and State Debts. — 

MacDonald, Select Documents, 46-58; Hunt, James Madison, 
179, 200; Lodge, Hamilton, 85-96, 117-129; Gordy, Political 
Parties, i, 118-128; McMaster, United States, i, 567-579; Schouler, 
United States, i, 130-142; Hildreth, United States, iv, 152-174, 206- 
216; H. von Hoist, United States, i, 83-89; Morse, Jefferson, 97-106. 

The Constitutional Doctrine of Implied Powers. — Jef- 
ferson, Writings, v, 284-289; Hamilton, Works, iii, 249-251; iv, 
104-138; Madison, Letters, i, 528, 546; Hunt, James Madison, 201- 
204; MacDonald, Select Documents, 76-98; Lalor, Cyclopaedia, i, 
199, 200; Hildreth, United States, iv, 262-267; Marshall, Writings, 
288-291 ; Magruder, John Marshall, 172-179. 

Citizenship.— Story, Commentaries, §§ 1103, 1104, 1693-1695, 
1805, 1806, 1928-1975; Political Science Quarterly, 1: 199-205; 5: 
104-123; H. von Hoist, Constitutional Law, §83; Boutwell, Con- 
stitution, Chaps. X, XXII, XXIII, XLIV, LIII-LVIII, LXIII, 
LXIV. 

The Alien and Sedition Acts. — MacDonald, Select Docu- 
ments, 137-148; Gordy, Political Parties, i, Chap. XIX; McMaster, 
United States, ii, 389-403, 417-419, 424-427; Schouler, United 
States, i, 392-403, 420, 421 ; Lalor, Cyclopaedia, i, 56-58. 



WHAT CONGRESS CAN DO 145 

The Monroe Doctrine. — Hart, Contemporaries, iii, 479, 480, 
494-498, 499-501; Gilman, James Monroe, 156-174; Wharton, 
Digest, i, § 57; Gordy, Political Parties, ii, 488-496; Burgess, Middle 
Period, 122-128; Schouler, United States, iii, 277-291, 292, 293. 

The Doctrine that "To the Victor Belong the Spoils." 
— Lalor, Cyclopaedia, iii, 565-569; Morse, Jefferson, 215-225; Benton, 
Thirty Years' View, i, 159-162; Roosevelt, Benton, 79-85; Schurz, 
Clay, i, 332-336; Sumner, Jackson, 145-149; Wilson, Division, 
26, 27, 30-34; Schouler, United States, iii, 175, 453, 455-462. 

The Various Forms of United States Money. — Secre- 
tary of the Treasury, Annual Report; Register of the Treasury, 
Annual Report; Sumner, American Currency; Hart, Contemporaries, 
iv, §§ 168-172; Knox, United States Notes; White, Money and 
Banking. 

Congress and the Income Tax. — North American Review, 
160, 589-606; Forum, 19: 48-56, 513-530, 158. 

' War Taxes. — Dewey, Financial History, 299-306; Bolles, Fi- 
nancial History, 1861-85, 159-196 ; Howe, United States under 
Internal Revenue System, 50-81 ; Review of Reviews, xvi, 167-174. 

Implied Powers. — Channing and Hart, Guide, 333, 334. 

The Interstate Commerce Commission. — Prentice and 
Egan, Commerce Clause of the Federal Constitution; Johnson, Rail- 
way Transportation; Reports of the Commission. 



CHAPTER VI 

THE ORGANIZATION, POWERS, AND 

DUTIES OF THE FEDERAL 

EXECUTIVE. 

79. The Form of the Executive. — Many of the political 
ills which the people of the colonies had suffered or feared, 
they had attributed to the king. This made them hesitate 
to place any one man at the head of the new Government. 
Jealousy, moreover, made many persons reluctant to give 
power to any one man. In the Philadelphia convention of 
1787, Mr. Randolph affirmed that a single executive was 
opposed by the people; that it would never have their con- 
fidence; and that a single chief executive would commonly 
come from the central part of the Union, and, consequently, 
the remote parts would be in a position of disadvantage. 

On the other side a number of reasons were presented 
against an executive composed of a number of persons: (1) 
Such an arrangement would lead to constant struggles for 
local advantage. (2) The executive power would be weak- 
ened by its divisions and animosities. (3) The States all 
had single executives. (4) A plural executive would be ill 
adapted to controlling the militia, the array, and the navy. 
(5) The animosities arising from an executive composed of 
several persons would not only interrupt the public admin- 
istration, but also diffuse the spirit of animosity through 
the other branches of the Government, through the States, 
and through the people at large. 

It is probable that the presence of Washington, who was 
146 



POWERS AND DUTIES OF THE FEDERAL EXECUTIVE 147 

generally regarded as eminently fitted to fill the office, was 
in itself also a reason for vesting the executive authority 
in one man. In the Constitutional Convention it was thus 
settled early, by a vote of eight States to three, that this 
should be the form of the executive. 

Topics. — Opposition to single chief executive. — Reasons against 
collegiate executive. — Probable influence of Washington's presence. 
— Vote in Constitutional Convention. 

References. — Bryce, American Commonwealth, 35-39; Dawes, 
How We Are Governed, 167-170, 199; Fiske, Civil Government, 232; 
Hart, Actual Government, 259-261 ; Hinsdale, American Govern- 
ment, 248-250; Lalor, Cyclopaedia, ii, 131; Miller, Lectures, 148. 

8o. Election of the President. — In the Constitutional 
Convention three methods of electing the President were 
considered: (1) By Congress; (2) by a direct vote of the v 
qualified voters of the whole country; (3) by a college of 
electors. The delegates feared that the first method would 
make the President dependent on Congress, and that the 
second would arouse too much popular excitement. They 
finally agreed to cause the President to be elected by a body 
of presidential electors. The electors were to be appointed 
by the several States in such manner as the legislature in 
each State might direct. Under the exercise of this dis- 
cretion, different methods of choosing the electors have been 
followed. They have been elected "by joint ballot of the 
State legislature, by a concurrent vote of the two branches 
of the legislature, by the people of the State voting by 
general ticket, and by the people voting in districts." The 
voting by districts would be likely to give the State a divided 
delegation in the electoral college, while by any one of the 
other modes all the electors of any given State might be 
expected to belong to the dominant political party. 

The Constitution provides that the number of electors 
from any State shall be "equal to the whole number of 



148 THE GOVERNMENT OF THE UNITED STATES 

senators and representatives to which the State may be 
entitled in the Congress; but no senator, or representative, 
or person holding an office of trust or profit under the United 
States, shall be appointed an elector." In carrying out 
this provision one elector is taken from each congressional 
district and two from the State at large. On a day pre- 
viously fixed, "the electors shall meet in their respective 
States and vote by ballot for President and Vice-President, 
one of whom, at least, shall not be an inhabitant of the 
same State with themselves; they shall name in their ballots 
the person voted for as President, and in distinct ballots the 
person voted for as Vice-President; and they shall make 
distinct lists of all persons voted for as President, and of all 
persons voted for as Vice-President, and of the number of 
votes for each, which lists they shall sign and certify, and 
transmit, sealed, to the seat of Government of the United 
States, directed to the President of the Senate. The Presi- 
dent of the Senate shall, in the presence of the Senate and 
House of Representatives, open all the certificates, and the 
votes shall then be counted. The person having the greatest 
number of votes for President shall be the President, if such 
number be a majority of the whole number of electors 
appointed." 

In case equal numbers of electors vote for two candi- 
dates, or if no candidate receives a majority of the whole 
number of electors appointed, " then from the persons having 
the highest numbers, not exceeding three, on the list of those 
voted for as President, the House of Representatives shall 
choose, immediately, by ballot, the President. But in 
choosing the President, the votes shall be taken by States, 
the representation from each State having one vote. A 
quorum for this purpose shall consist of a member or mem- 
bers from two-thirds of the States, and a majority of all the 
States shall be necessary to a choice. And if the House of 
Representatives shall not choose a President, whenever the 



POWERS AND DUTIES OF THE FEDERAL EXECUTIVE 149 

right of choice shall devolve upon them, before the fourth 
day of March next following, then the Vice-President shall 
act as President, as in the case of the death or other constitu- 
tional disability of the President." 1 

It was originally intended that the electors should ex- 
ercise complete freedom in voting. The person having the 
greatest number of votes should be the President, provided 
the number of votes received by him was more than one-half 
of the whole number of electors. The person receiving the 
next greatest number below that given for the President, 
should be Vice-President. This plan appeared to the mak- 
ers of the Constitution to be eminently satisfactory. They 
thought the electors would be the best citizens of the sev- 
eral States, and that they would elect for President the per- 
son approved by their independent judgment. The votes 
of the individual electors were counted for the person des- 
ignated. Under this system the President might belong 
to one political party and the Vice-President to another 
party. In such a case the death of the President would 
cause the transfer of the administration from one party to 
another, or from the majority to the minority. This was 
not a prospect to be regarded with favor by either party; 
for the prize won in a presidential election was too important 
for the victorious party to be held dependent on the un- 
certainty of a single human life. This plan was set aside 
in practice very early. 

Under the present method of election, party conventions 
within the State nominate electors, and the national con- 
ventions nominate candidates for the presidency. The 
electors, under this system, simply furnish a method of 
counting the vote that has been cast for the persons named 
by the national conventions of the two parties. It is counted 
by States, each State standing for a number equal to the 

1 Amendment XII. 



150 THE GOVERNMENT OF THE UNITED STATES 

number of its electors, or equal to the number of its senators 
and members of the House of Representatives. The election 
is held on the Tuesday after the first Monday of November 
preceding the March when the President is inaugurated. 
The party in any given State that casts the largest number 
of votes at the election, however numerous the minority vote, 
has all the electors of the State counted for its presidential 
candidate. Within each State the popular vote determines 
for which candidate the whole number of electors allotted 
to the State shall be counted. In 1884 the Democratic 
party in New York had a majority of but 1,100 in a total 
vote of over 1,100,000; and the thirty-six electoral votes of 
the State were cast for Mr. Cleveland. In Pennsylvania, 
the thirty Republican electors were elected by a vote of 
473,000 against a vote of 392,000 for the Democratic electors. 
Under the earlier method of election, Washington be- 
came President twice by the unanimous vote of the electoral 
college; and John Adams, having, after the vote for Presi- 
dent, the greatest number of votes of the electors, became 
Vice-President. At the third election, John Adams, of one 
political party, became President, and Thomas Jefferson, of 
the other party, became Vice-President. At the fourth 
election Jefferson and Burr, of the same political party, had 
the same number of votes, and the choice was made by the 
House of Representatives. The difficulties attending this 
method of electing a President led to the twelfth amendment 
of the Constitution, adopted in 1804. Under this amend- 
ment the election has been referred to the House of Repre- 
sentatives. This was in 1824, when Andrew Jackson, John 
Quincy Adams, William H. Crawford, and Henry Clay were 
candidates. Henry Clay's name could not be considered 
by the House of Representatives, since he received fewer 
electoral votes than any of the others; and under the 
twelfth amendment the election by that body must be from 
the three persons having the highest numbers of votes. Mr. 



POWERS AND DUTIES OF THE FEDERAL EXECUTIVE 151 

Adams received the votes of thirteen of the twenty-four 
States and was elected. 

Since the presidential candidates are named by the 
national conventions before the voting for electors begins, 
the voters practically cast their votes for one or another 
candidate. By reason of the method of counting involved 
in the present system, it sometimes happens that the major- 
ity of the electors may be on the side of one party, while the 
majority of the popular vote may be with the other party. 
This result naturally provokes criticism. There would, 
perhaps, be some basis for such criticism if it had been de- 
signed, in organizing the Government, that the popular 
majority should dominate in all cases. But this does not 
appear to have been the purpose of the framers of the Con- 
stitution. Since each State, however large or however 
small, sends two senators to the Federal Congress, it may 
happen that the majority in the Senate will represent only* 
a minority of the voters in the nation. But this is not a 
departure from the plan of the Government as drawn by its 
founders; and the same may be said of the fact that the 
majority in the electoral college is not of the same party as 
the popular majority. 

In the presidential election of 1876, the persons author- 
ized to count the electoral votes were placed in a perplexing 
position by receiving from several of the States double 
returns. The embarrassment of the situation was increased 
by the fact that the election depended upon the votes of these 
States. The laws relating to elections did not furnish a 
means of settling this case; and with a Republican Senate 
and a Democratic House of Representatives, the problem 
was full of difficulties. At this point Congress intervened. 
It passed an act, approved January 29, 1877, which created 
an electoral commission. The act itself was made applicable 
only to this case. Under this act the two houses, in joint 
meeting, were to open the electoral votes and to enter upon 



152 THE GOVERNMENT OP THE UNITED STATES 

the journals the votes to which no objections should be 
made. No single return from any State, to which objection 
might be made, should be rejected except by the concurrent 
vote of both houses. The double or multiple returns were 
disposed of by the second section of the act already men- 
tioned : 

" That if more than one return, or paper purporting to be 
a return, from a State shall have been received by the 
President of the Senate, purporting to be the certificates of 
electoral votes given at the last preceding election for Presi- 
dent and Vice-President in such State (unless they shall be 
duplicates of the same return), all such returns and papers 
shall be opened by him in the presence of the two houses, 
when met as aforesaid, and read by the tellers, and all such 
papers and returns shall thereupon be submitted to the 
judgment and decision, as to which is the true and lawful 
electoral vote of such State, of a commission." 

They were referred to a commission to decide which was 
the true and lawful electoral vote of the States from which 
two sets of returns or certificates had been received. This 
commission was composed of fifteen members. Four of 
the associate justices of the Supreme Court were named in 
the law which provided for the commission, and these chose 
Joseph P. Bradley, a Republican, as the fifth associate justice. 
Besides the associate justices, there were five senators and 
five members of the House of Representatives, who were 
selected respectively by the two houses. From each of the 
States of Florida, Louisiana, Oregon, and South Carolina, 
there were returns of electoral votes in favor of Rutherford 
B. Hayes, the Republican candidate for President, and 
other returns of votes in favor of Samuel J. Tilden, the 
Democratic candidate. By a vote of eight to seven, a 
strict party vote, the commission sustained the validity of 
the votes for Mr. Hayes in each case, and he became Presi- 
dent. 



POWERS AND DUTIES OP THE FEDERAL EXECUTIVE 153 

Topics. — Method of electing President proposed. — Method 
adopted. — Number of electors. — Meeting of electors. — Procedure 
when electors fail to elect. — Oath of office. — Compare old and new 
method. — Elections under the old method. — Elections by House of 
Representatives. — Majority of electors and popular majority. — 
The electoral commission and its work. 

References. — Bryce, American Commonwealth, ii, 168-193; 
Dawes, How We Are Governed, 171-184; Fiske, Civil Government, 
232-240; Hart, Practical Essays, 58-81; Hart, Actual Government, 
261-269; Hinsdale, American Government, 251-264; Lalor, Cyclo- 
paedia, ii, 50-60; Wilson, Congressional Government, 242-256. 

8i. Qualifications and Compensation. — The President of 
the United States must be "a natural born citizen" of the 
United States, at least thirty-five years of age, and have 
"been fourteen years a resident within the United States." 
The Constitution provides that he "shall receive for his 
services a compensation which shall neither be increased nor 
diminished during the period for which he shall have been 
elected, and he shall not receive within that period any other 
emolument from the United States or any of them." In 
case a President serves two terms in succession he may 
receive an increased compensation for the second term, pro- 
vided the increase is made before the expiration of the first 
term, even though he may have been reelected before the 
increase is made. The amount of this compensation is 
fixed by Congress; and, at present, it is $75,000 a year, 
payable monthly. The President has, moreover, the use 
of the executive mansion, its "furniture, and all other 
effects belonging to the United States." He is authorized 
to employ in his official household one private secretary, 
one assistant private secretary, two executive clerks, one 
steward, and one messenger. 

Topics. — Birth and age. — Compensation. — As to increase of 
compensation. — Members of official household and their salaries. 
11 



154 THE GOVERNMENT OF THE UNITED STATES 

References. — Dawes, How We Are Governed, 170, 171; 199- 
202; Fiske, Civil Government, 241; Hinsdale, American Government, 
265-269; Miller, Lectures, 153, 154. 

82. The Presidential Term. — The President holds his of- 
fice during a term of four years. At first the Constitu- 
tional Convention was in favor of a term of seven years, 
without the privilege of reelection. The longer period was 
supported by the idea that more frequent elections would 
be undesirable on account of the social and economic dis- 
turbances that would be caused by them; that they would 
be "hazardous to the public tranquillity." The popular 
agitation that was greatly feared has, in fact, offered the 
most effective means for keeping the whole body of the peo- 
ple interested and instructed in the questions that vitally 
concern the welfare of the Republic. In a monarchy or an 
aristocracy popular tranquillity is highly desirable, for it 
leaves the monarch or the limited class of rulers free to 
carry out the proper designs of the government. But in a 
democratic republic it is not enough that the masses of the 
people should remain tranquil and acquiesce in what is done 
by those temporarily in authority; they must have knowl- 
edge of public affairs, and this knowledge will be found in 
the people only so long as it shall be possible to maintain 
popular interest in governmental questions; and for this 
purpose nothing has hitherto been discovered more effective 
than the discussions which attend a presidential election. 

Topics. — Term of office. — Arguments in favor of a longer term. 
— Effect of popular agitation attending presidential election. — 
Knowledge of public affairs. 

References. — Dawes, How We Are Governed, 173-186; Miller, 
Lectures, 151, 152; Hinsdale, American Government, 250. 

83. The Vice-President. — The Vice-President is elected 
in the same manner as the President, except that if no 



POWERS AND DUTIES OF THE FEDERAL EXECUTIVE 155 

person has a majority of the whole number of electors ap- 
pointed, then from the highest two numbers on the list the 
Senate shall choose the Vice-President. It is to be noted 
that the election is from the two persons having the highest 
numbers of votes, instead of from three persons, as in the 
case of electing the President; and that the choice is made 
by the Senate instead of by the House of Representatives. 
A quorum of the Senate, for this purpose, consists of two- 
thirds of the whole number of senators. "But no person 
constitutionally ineligible to the office of President shall be 
eligible to that of Vice-President of the United States." 

"In case of the removal of the President from office, or 
of his death, resignation, or inability to discharge the powers 
and duties of the said office, the same shall devolve on the 
Vice-President; and the Congress may by law provide for 
the case of removal, death, resignation, or inability, both 
of the President and Vice-President, declaring what officer 
shall then act as President; and such officer shall act ac- 
cordingly, until the disability be removed, or a Presidint 
shall be elected." Under this authorization Congress pro- 
vided, in 1792, that after the Vice-President the succession 
should go to the President pro tempore of the Senate; and, 
in case there was no such president, to the Speaker of the 
House of Representatives. This law of succession was 
modified by the act of 1886, in which it was provided that 
after the Vice-President the succession should go to members 
of the Cabinet in the following order: The Secretary of 
State, the Secretary of the Treasury, the Secretary of War, 
the Attorney General, the Postmaster General, the Sec- 
retary of the Navy, the Secretary of the Interior. If the 
Vice-President succeeds to the presidency, he serves as 
President for the remainder of the current presidential 
term; but if a member of the Cabinet becomes President 
under this law, he will act only till a new President can be 
elected. No person can become President under this law 



156 THE GOVERNMENT OF THE UNITED STATES 

unless he has the constitutional qualifications for the presi- 
dency. 

Topics. — Election of Vice-President. — Part taken by the 
Senate. — Succession of the Vice-President. — Succession to the presi- 
dency after the Vice-President. — No succession without constitu- 
tional qualifications. 

References. — Dawes, How We Are Governed, 179-183; Hins- 
dale, American Government, 257, 258. 

84. Executive Power. — It was easier for the Constitu- 
tional Convention to determine that the executive power 
should be vested in one man, than to determine how much 
power he should have. Hamilton proposed a strong Execu- 
tive, who should hold office for life, or until removed by 
impeachment. This view, however, was not generally 
accepted. The more democratic and conservative members 
of the convention found a model in the governors of the 
States. They believed that what was needed was a governor 
of the Union; an officer of great independence, but holding 
his office for a definite term. This term was fixed by the 
Constitution at four years. In providing for the Executive, 
the makers of the Constitution hoped to create an officer 
sufficiently dignified to represent worthily the whole Union, 
as the governors had represented the States; sufficiently 
independent and powerful to prevent the legislative bodies 
from absorbing too much power, and at the same time so 
limited as not to threaten the liberties of the people. Later 
experience indicates that the President now. wields more 
power than the majority of the convention expected to 
confer upon him. 

The powers of the President relate to three classes of 
affairs — foreign affairs, internal affairs, and war: 

1. In determining the foreign relations of the Govern- 
ment the President makes treaties with foreign powers; 
and these treaties, when confirmed by a vote of two-thirds 



POWERS AND DUTIES OF THE FEDERAL EXECUTIVE 157 

of the senators present, become authoritative and a part 
of the law of the land. He appoints ambassadors, ministers, 
consuls, and other officers representing the Government 
in its relation to foreign nations. In these cases confirma- 
tion by the Senate is required, for which, however, only a 
majority vote is needed. 

2. In internal affairs the President appoints the Judges 
of the Supreme Court and all other officers of the United 
States authorized by law, whose appointments are not 
otherwise provided for by the Constitution. The power 
to appoint to office includes the power to remove from 
office. 

The President may reprieve or pardon persons convicted 
of offenses against the United States except in cases of 
conviction under impeachment. In reprieving a criminal 
the President suspends temporarily a sentence that has 
already been pronounced by a lawfully constituted court, 
while in pardoning he relieves the criminal completely from 
the sentence. He may, on extraordinary occasions, con- 
vene both houses of Congress, or either of them; "and in 
case of disagreement between them with respect to the 
time of adjournment, he may adjourn them to such time as 
he shall think proper." But the President has never 
exercised this power. 

3. Important among the President's powers is that 
which he exercises as " Commander in Chief of the Army and 
Navy of the United States and of the militia of the several 
States when called into the actual service of the United 
States." In times of peace there is little evidence that the 
President's war power is especially significant; but in case 
of war the vast power that is vested in him as commander 
in chief of the army and navy becomes clearly manifest. 
Through the Secretary of War and the Secretary of the 
Navy his orders are issued, which direct the movements of 
those two powerful arms of the Government. If adequate 



158 THE GOVERNMENT OF THE UNITED STATES 

funds have been appropriated for military or naval purposes, 
the President may carry on a war for subduing an insur- 
rection or repelling invasion without calling upon Congress. 
The war for suppressing the insurrection in the Philippines 
in the years 1899, 1900, and 1901, illustrates the great power 
and independence of the President under certain circum- 
stances in conducting warlike operations. 1 

Topics. — Hamilton's proposal as to power of Executive. — Model 
adopted for presidential office. — Three classes of affairs under presi- 
dential power. — Extent of the President's military power. 

References. — Bryce, American Commonwealth, Chap. V; Dawes, 
How We Are Governed, 187-191 ; Fiske, Civil Government, 242; Hart, 
Actual Government, 269; Lalor, Cyclopaedia, iii, 1064; Miller, Lec- 
tures, 154-156. 

85. Making Treaties.— In making treaties the negotia- 
tions are undertaken by the President through either the 
Secretary of State or a specially appointed agent. The spe- 
cial agent may be the minister or ambassador residing at 
the capitol of the nation with whom the treaty is to be made, 
or any other person named as a commissioner for this pur- 
pose. It may happen that the Secretary of State or the 
commissioner will find it impossible to negotiate a treaty 
that will be satisfactory to the President. In this case the 
negotiations will come to an end without practical results. 
If the President approves of the treaty formed by the ne- 
gotiators, he will submit it to the Senate. The Senate will 
then consider it and either confirm it or amend it. If it is 
amended by the Senate, it must be returned to the negoti- 
ators for further consideration and approval by the repre- 
sentatives of the foreign power. The final step in making 
a treaty is the formal exchange of ratifications through 
which the parties to the treaty mutually declare that the 
forms prescribed by law for making a treaty have been 

1 See p. 129, and § 150. 



POWERS AND DUTIES OF THE FEDERAL EXECUTIVE 159 

observed, and that the treaty itself has become binding 
with respect to both parties. 

Topics. — The process of making a treaty. — Relation of the 
Senate to treaty making. — Final act: formal exchange of ratifica- 
tions. 

References. — Bryee, American Commonwealth, 49, Chap. XI; 
Hart, Actual Government, 439-446; Lalor, Cyclopedia, iii, 944; 
Miller, Lectures, 167, 168. 

86. Relation of the House of Representatives to Treaty- 
Making. — A treaty made in the manner prescribed is valid 
and has the force of law, although the House of Representa- 
tives may not haA'e been consulted concerning it. Such 
a treaty may impose upon the Government an obligation to 
pay a certain amount of money; but under the Constitu- 
tion "no money shall be drawn from the treasury but in 
consequence of appropriations made by law." It thus* 
appears that the House of Representatives may be called 
upon to vote to appropriate money for fulfilling the terms 
of a treaty which it had no voice in making. The treaty 
has, however, been made strictly in accordance with law, 
and the obligation of the Government under it is complete; 
but the House of Representatives is legally competent to 
refuse to make the stipulated appropriation, and thus, acting 
within the sphere of its unquestioned authority, may place 
the Government in the position of having directly violated 
a treaty voluntarily made by it. Still, the House of Repre- 
sentatives is under a moral obligation not to prevent the 
lawfully constituted authorities from carrying out the treaty; 
but it cannot be compelled to act in accordance with this 
obligation. "The treaty when thus ratified is obligatory 
upon the contracting states, independently of the auxiliary 
legislative measures which may be necessary on the part of 
either in order to carry it into complete effect." 1 " Neither 

1 Wheaton, International Law, London, 1904, § 266. 



160 THE GOVERNMENT OF THE UNITED STATES 

government has anything to do with the auxiliary legis- 
lative measures necessary, on the part of the other state, 
to give effect to the treaty. The nation is responsible to 
the government of the other nation for its non-execution, 
whether the failure to fulfill it proceeds from the omission 
of one or other departments of its government to perform 
its duty in respect to it." 1 

In later times the House has claimed the right to par- 
ticipate in making any treaty that changes the customs 
duties, on the ground that the Constitution confers the 
power to regulate commerce with foreign nations upon Con- 
gress and not upon the President and the Senate. This 
claim is, however, not generally admitted. 

Topics. — What constitutes a valid treaty ? — The case where 
treaty calls for payment by the United States. — Position of House 
of Representatives in treaty-making. 

References. — Hinsdale, American Government, 271-273; Miller, 
Lectures, 168; Wheaton, International Law, see Index under 
Treaties. 

87. Treaty-Making Power Limited by the Constitution. 

— The Constitution is made directly by the legal sovereign — 
that is, by the collection of bodies that have power to 
amend the Constitution. These bodies are the two houses 
of Congress and the legislatures of the States, or conven- 
tions in the States. Treaties are made by the President 
and the Senate, and Federal statutes are made by the 
President and the Congress. The relation between the 
makers of the Constitution and the makers of treaties is 
the relation between principal and agent. The agent has 
no power to nullify or set aside the orders or decrees of his 
principal. Thus treaties and Federal statutes are inferior 
to, and limited by, the Constitution of the United States; 
and in so far as these treaties or statutes are contrary to 

1 Lawrence's Wheaton, International Law, p. 459, note. 



POWERS AND DUTIES OF THE FEDERAL EXECUTIVE 161 

the provisions of the Constitution they are null and void. 
Treaties and Federal statutes are, however, the law of the 
land in the sense that they are valid throughout the Union, 
and that their provisions cannot be nullified by State laws 
or State constitutions. A treaty and a Federal statute 
have like authority; but a treaty of later date than a 
statute nullifies all contrary provisions of the statute, while, 
on the other hand, a statute of later date than a treaty 
nullifies all contrary provisions of the treaty. Referring 
to the relation of a treaty to the Constitution and the re- 
lation of a treaty to an act of Congress, the Supreme Court, 
in the Cherokee Tobacco case, makes the following state- 
ment: "It need hardly be said that a treaty cannot change 
the Constitution or be held valid if it be in violation of 
that instrument. This results from the nature and funda- 
mental principles of our Government. The effect of treaties 
and acts of Congress, when in conflict, is not settled by the 
Constitution. But the question is not involved in any doubt 
as to its proper solution. A treaty may supersede a prior 
act of Congress, and an act of Congress may supersede a 
prior treaty." 

Topics. — Relation of treaties and Federal statutes to the Con- 
stitution. — Their relation to State laws and State constitutions. — 
Relation of treaty to Federal statute. 

References. — Hinsdale, American Government, 270-273; Hart, 
Actual Government, 439-444. 

88. Jay's Treaty of 1794 and the House of Representa- 
tives. — At the beginning of Washington's administration he 
found British troops occupying the northern frontier of the 
Union, Spain making encroachments from the south, and 
an agent of France in the United States attempting to fit 
out privateers to be used by France against England. To 
form a treaty that might remove these evils and avert a war, 
John Jay, the Chief Justice of the United States, was sent 



162 THE GOVERNMENT OF THE UNITED STATES 

to London as a special envoy. He negotiated a treaty 
which was signed in 1794. It provided for the withdrawal 
of the British garrisons from the northwestern posts, and 
for the adjustment of disputes respecting the boundaries. 
It provided for a joint commission to fix the amount of 
payments to be made by the United States to Great Britain 
on behalf of British creditors; and for another similar 
commission to determine the amount of payments to be 
made by Great Britain to the United States on account of 
illegal captures. It made provision for the extradition of 
persons charged with crime, and for regulating commercial 
intercourse. " It contained no disavowal of the arbitrary 
principles which Great Britain had asserted, no provisions 
that free ships should make free goods; and it granted to 
Great Britain the privileges for her vessels of war and prizes 
which France enjoyed under the treaty of 1778." The 
treaty was generally regarded as defective, and a great 
popular outcry was raised against it. Washington saw its 
defects, but he believed that no better treaty could be ob- 
tained then. The House of Representatives was called 
upon to appropriate money to meet the expenses involved 
in carrying out the treaty, and it proposed to take advan- 
tage of this situation to enforce its claim to have a hand in 
making treaties. It asked for the instructions under which 
Jay had acted. Washington refused to accede to this 
request, although the instructions had already been pub- 
lished. He wished to emphasize the fact that the assent 
of the House was not necessary to the validity of a treaty. 
The House of Representatives finally yielded, and in no 
subsequent instance has it failed to make the appropriation 
required to fulfill the conditions of a treaty. 

Topics. — Object of Jay's treaty of 1794. — Terms of the treaty. — 
Popular view of it. — Washington's attitude toward it. — Course 
proposed by House of Representatives. — Significance of the final 
action. 



POWERS AND DUTIES OF THE FEDERAL EXECUTIVE 163 

References.— Lalor, Cyclopaedia, ii, 634; iii, 945; Hinsdale, 
American Government, 272; McLaughlin, History of the American 
Nation, 250. 

89. Treaties Annexing Territory. — Following are the im- 
portant treaties, signed, rejected, or withdrawn, involving 
the annexation of territory to the United States: 

1. In April, 1803, Louisiana was by treaty purchased 
from France. Thomas Jefferson, who was then President, 
held that in making this treaty the Executive had " done an 
act beyond the Constitution/' but that the Legislature 
should ratify it and pay the sum promised "and throw 
themselves on their country for doing for them, unauthor- 
ized, what we know they would have done for themselves 
had they been in a situation to do it." To remedy the sup- 
posed unconstitutionality of the purchase, Jefferson sug- v 
gested an amendment to the Constitution, providing that 
the inhabitants of Louisiana should stand "as to their 
rights and obligations on the same footing with other 
citizens of the United States in analogous situations." In 
the House of Representatives the vote to carry the treaty 
into effect stood ninety to twenty-five, the minority holding 
that the annexation was unconstitutional. Louisiana was, 
however, accepted without an amendment, and has since 
been considered, without question, a part of the territory 
of the United States. 

2. By treaty signed February 22, 1819, Spain ceded 
Florida to the United States. In consideration of this 
cession the United States agreed to pay claims against 
Spain amounting to $5,000,000. Spain withheld her ratifi- 
cation of this treaty till 1821, asking as price of such ratifica- 
tion that "the United States should refuse to recognize the 
revolted Spanish-American colonies. 

3. In 1844, Calhoun, who was then Secretary of State 
under President Tyler, drew up the form of a treaty of 



164 THE GOVERNMENT OF THE UNITED STATES 

annexation with Texas. This was submitted to the Senate 
and rejected by a vote of sixteen to thirty-five. The next 
year a joint resolution was passed by the House of Represent- 
atives, which affirmed that "Congress doth consent that 
the territory properly included within, and rightly belong- 
ing to, the Republic of Texas may be erected into a new 
State, to be called the State of Texas." This resolution 
was amended by additions permitting four new States to be 
formed out of this territory besides the State of Texas, and 
authorizing the President to make a treaty of annexation 
with Texas. In its amended form the resolution was passed 
by the Senate and accepted by the House, but a treaty with 
Texas was never made. The annexation was effected by a 
joint resolution of Congress. 

4. The Treaty of Guadalupe-Hidalgo, signed February 
2, 1848, and ratified by the Senate, March 10 of the same 
year, closed the Mexican War and ceded to the United States 
the territory of New Mexico and California. This cession 
was made under the agreement that the United States should 
pay $15,000,000 and assume $3,250,000 in claims of Amer- 
ican citizens against Mexico. 

5. The Gadsden Treaty, made in 1853, was a treaty of 
purchase. Under it the United States paid $10,000,000 
for a certain territory south of the Gila River, embracing 
45,535 square miles. 

6. The treaty with Russia, by which Alaska was ceded 
to the United States, was made March 30, 1867, and was 
ratified by the Senate on June 20 of the same year. It 
added to the territory of the United States a region 577,390 
square miles in extent. At that time it was thought to be 
valuable chiefly for its fur-bearing animals, but since then 
it has been found to contain large quantities of gold. 

7. In 1893 a treaty was agreed upon between the Gov- 
ernment of the United States and the new Hawaiian Govern- 
ment that had been established as a consequence of the 



POWERS AND DUTIES OF THE FEDERAL EXECUTIVE 165 

revolution in which the Queen was deposed. It was sent 
to the Senate for ratification; but before action was taken 
on it President Harrison's term of office expired. The 
treaty was subsequently withdrawn from the Senate by 
President Cleveland. The breaking out of the war between 
the United States and Spain in 1898 strengthened the party 
in favor of annexation, and in July Congress passed a joint 
resolution by which the Hawaiian Islands and their de- 
pendencies were "annexed as part of the territory of the 
United States." 

8. By the Treaty of Paris, closing the Spanish-American 
War, made December 10, 1898, Spain ceded to the United 
States the Island of Porto Rico, and other islands then under 
Spanish sovereignty in the West Indies, and the Island of 
Guam in the Marianas or Ladrones. By the same treaty 
Spain ceded also the Philippine Islands, and the United ^ 
States paid Spain the sum of $20,000,000. This treaty was 
approved by the Senate February 6, 1899, and ratifications 
were exchanged in Washington, April 1 1 of the same year. 

Topics. — Louisiana purchase. — Jefferson's position. — Attitude 
of the House of Representatives. — Cession of Florida. — Annexation 
of Texas. — Treaty of Guadaloupe Hidalgo. — Gadsden Treaty. — Pur- 
chase of Alaska. — Annexation of Hawaii. — Treaty of Paris, 1898. 

References. — Hart, Actual Government, 342-346; Lalor, Cy- 
clopcedia, i, 93-99. 

90. The President's Messages to Congress. — The Presi- 
dent has need to address the Senate in connection with the 
making of treaties with foreign powers. He has, moreover, 
need to address the whole Congress in connection with 
making laws. Holding the power of a limited veto over 
proposed laws, he thereby possesses some of the functions 
of a legislator and is thus under the necessity of communi- 
cating to Congress his views respecting bills passed by that 
body. It was presumed by the makers of the Constitution 



166 THE GOVERNMENT OF THE UNITED STATES 

that it would be advisable for him, as the political leader 
of the nation, to have opportunity to present to Congress 
a general statement concerning the condition of the country, 
an outline of his policy, and such recommendations as to 
legislation as might seem to him expedient. In the Con- 
stitution it was therefore provided that, "he shall, from 
time to time, give to Congress information of the state of 
the Union and recommend to their consideration such 
measures as he shall judge necessary and expedient." 
Under this constitutional provision the President sends a 
general message to Congress at the beginning of each annual 
session in December, and special messages as the business 
of the administration may require. During the administra- 
tions of Washington and Adams the annual messages of 
the Presidents were delivered in person. This procedure 
was like that of the king's "speech from the throne" to the 
British Parliament. In delivering the main body of his 
message the President addressed Congress as, "Fellow- 
citizens of the Senate and House of Representatives." The 
part of the message relating to revenue and appropriations 
was addressed to the "Gentlemen of the House of Repre- 
sentatives," and the conclusion, to the "Gentlemen of the 
Senate and House of Representatives." The practice of 
the British Parliament was further followed in the com- 
position of an answer to the President's address by the two 
houses of Congress. Even while this practice was in vogue 
with respect to the annual message, special messages were 
usually sent in writing. The practice of delivering the 
annual message in person was abandoned in Jefferson's 
administration, and his substitution of the written for the 
spoken message furnished a precedent that has been followed 
by all later Presidents. 

Topics. — President's need to address Congress. — General mes- 
sage. — First general messages delivered in person. — Early special 
messages. 



POWERS AND DUTIES OF THE FEDERAL EXECUTIVE 167 

References. — Dawes, How We Are Governed, 188; Fiske, Civil 
Government, 243; Lalor, Cyclopcedia, ii, 828; Miller, Lectures, 168- 
170. 

91. Special Messages. — The President's special messages 
to Congress embrace all communications sent by him in 
transacting the regular business of the administration. 
Whenever an appointment is made that requires confir- 
mation by the Senate, this appointment is brought to the 
attention of the Senate by a special message from the Presi- 
dent. Whenever a bill passed by the two houses is pre- 
sented to him for his signature and he refuses to sign it, he 
communicates this fact and the reason for his decision by a 
special message. The greater part of the special messages 
addressed to Congress are sent to communicate the Presi- 
dent's veto of bills passed by that body, and such messages 
deal simply with the considerations that have moved the 
President to disapprove the bill in question. A special 
message is the means by which the President, participating 
in legislation, makes his opinion effective either to defeat a 
bill or to cause it to be carefully reconsidered. 

Topics. — Nature of the special message. — How a bill is vetoed. 
References. — Dawes, How We Are Governed, 188; Hinsdale, 
American Government, 281; Miller, Lectures, 170. 

92. Offices and Appointments. — Some of the offices of 
the Federal Government were created directly by the makers 
of the Constitution, while others had their origin in laws 
passed by Congress. The Constitution provides directly for 
senators and representatives, for presidential electors, for 
the President and the Vice-President, and for a Supreme 
Court. The larger part of the offices of the Federal Govern- 
ment were created by Congress, such as the inferior courts, 
heads of the several departments, and the large number of 
subordinate offices through which the Federal administra- 
tion is conducted. The power to create offices of the latter 



168 THE GOVERNMENT OF THE UNITED STATES 

class, like all the other powers of Congress, was derived from 
the Constitution. While the President possesses the power 
to fill offices by appointment, he has no power to create 
offices. His appointments in the case of the more important 
officers are subject to confirmation by the Senate. This is 
true of judges of the Supreme Court, the heads of depart- 
ments, consuls, ministers, and ambassadors; but many of 
the inferior officers the President may appoint without ref- 
erence to the Senate. Besides the officers appointed by 
the President, there are many inferior officers who are ap- 
pointed by courts of law or by the heads of departments. 
The Constitution authorizes Congress to " vest the appoint- 
ment of such inferior officers as they think proper in the 
President alone, in the courts of law, or in the heads of 
departments"; but it does not enable us to make a clear 
distinction between inferior officers and those persons in 
the public service who are designated " employees," such as 
ordinary laborers in the navy yards or arsenals. 

Topics. — Origin of the Federal offices. — Method of appointing 
Federal officers. — Part taken by the Senate. — Appointment of in- 
ferior officers. 

References. — Bryce, American Commonwealth, i, 61-66; 109, 
110, 394; Dawes, How We Are Governed, 191; Hart, Actual Govern- 
ment, 270-272; Miller, Lectures, 156-160. 

93. Attitude of the Senate toward Appointments by the 
President. — The framers of the Constitution thought that a 
bill would receive more just and thorough criticism if re- 
quired to pass through two legislative bodies instead of 
one. They thought also that candidates for appointment 
to important offices would be more carefully considered if 
their qualifications had to be reviewed not only by the 
President but also by the Senate. This Avas the original 
theory on which the President was required to submit the 
more important appointments to the Senate. While this 



POWERS AND DUTIES OP THE FEDERAL EXECUTIVE 169 

plan generally met with approval, a fear was at the same 
time expressed that the Senate would usurp executive 
functions. John Adams said: " Senators will be solicited by 
candidates for office. A senator of great influence will be 
ambitious of increasing his influence and will use it to get 
out his enemies and get in his friends." This prediction 
has, in a measure, become true. Senators have sometimes 
demanded that appointments from the State which they 
represent should be made in accordance with their wishes; 
and sometimes the Senate has rejected persons nominated, 
simply because they were personally not acceptable to the 
senators from the State in which they lived. This action 
was taken by the Senate with respect to Washington's 
nomination of a naval officer for the port of Savannah. 
This was the first nomination rejected; and the ground of 
rejection was not that the candidate was unfit for the office, % 
but that he was not personally acceptable to the senators 
from Georgia. In following this practice, known as the 
courtesy of the Senate, the Senate is not required to give 
its reasons for refusal. "This method of dealing with the 
subject has obviously defeated the purpose of the Con- 
stitution, which was to secure the disinterested judgment of 
the Senate as a body upon the merits of the candidate. All 
that is secured under this rule of courtesy is the favor of the 
local senators. By giving them directly the control of all 
the high Federal appointments for their State, and as a 
consequence substantially the control of the subordinates of 
their appointees, the senators have become more and more 
the dictators of State politics." 1 The deference shown the 
senators in this matter has doubtless been more or less 
influential in making them considerate of the President's 
wishes in the appointment of the members of the Cabinet, 
ambassadors, and other high officers, so that only in very 

1 Dorman B. Eaton, in Lalor's Cyclopcedia, i, 581. 
12 



170 THE GOVERNMENT OF THE UNITED STATES 

rare and exceptional cases is the confirmation of the appoint- 
ment of such an officer refused. 

Topics. — Reason for requiring confirmation by the Senate. — 
Senatorial demands respecting appointments.— Senatorial courtesy. 
—Appointment of ministers and members of the Cabinet. 

References. — Hinsdale, American Government, 275; Lalor, 
Cyclopaedia, i, 580; Willoughby, Rights and Duties, 212. 

94. Removals from Office. — The Constitution contains 
no provision concerning removals from office except under 
impeachment, and in cases of impeachment the judgment 
"shall not extend further than to removal from office and 
disqualification to hold and enjoy any office of honor, trust, 
or profit under the United States." The general decision 
of the Supreme Court covering this subject affirms that "in 
the absence of all constitutional provision or statutory regu- 
lation, it would seem to be a sound and necessary rule to 
consider the power of removal as incident to the power of 
appointment." Some of the early statesmen thought, with 
Hamilton, that a principle like this should be made generally 
applicable; and that if the consent of the Senate was neces- 
sary for appointment, it should be necessary for removal. 
Others, including Madison, held that, although an officer 
had been appointed " by and with the advice and consent of 
the Senate," he might, nevertheless, be removed by the 
President alone. The question was decided by Congress in 
1789, in favor of the latter view, which has since prevailed 
in practice. An attempt was made, however, in 1867, to 
establish a different policy, when Congress by a two-thirds 
vote passed the Tenure-of-office Bill over the President's 
veto. This bill provided that the consent of the Senate 
should be required for the removal of officers appointed by 
the President. Two years later part of this law was re- 
pealed. The rest of it continued in force until 1885, when 
this part also was repealed 



POWERS AND DUTIES OF THE FEDERAL EXECUTIVE 171 

Topics. — Judgment in case of impeachment. — Power of re- 
moval. — Question of consent of the Senate to removal. — Tenure-of- 
office bill; reason for its passage. 

References. — Dawes, How We Are Governed, 196; Hart, 
Actual Government, 285-288; Hinsdale, American Government, 276- 
278; Lalor, Cyclopcedia, iii, 565, 895; Miller, Lectures, 160-162. 

95. " Spoils System " and Merit System. — The theory of 
republican government involves the idea that the voters in 
selecting persons to fill offices will select the persons who are 
best fitted to perform the duties connected with the office in 
question. It involves also the supposition that when 
officers are empowered to appoint other officers the same 
end will be kept in view; but in practice it is found that the 
person who has the power of appointment is sometimes 
tempted to forget the public good and to appoint his personal 
friends, or persons who may help him to obtain the objects 
of his political ambition, or persons who have worked for 
the success of the party. In cases where the persons ap- 
pointed would displace other persons, the power of appoint- 
ment has sometimes been used, and may be used, to punish 
political enemies by causing their removal from office. 
Some or all of these motives have been effective in the poli- 
tics of the United States; and under their influence a prac- 
tice known as the "Spoils System " grew up. The funda- 
mental idea of this system is that the persons appointed to 
office shall be such as have rendered efficient service in 
making the party victorious and such as may be expected 
to work for the continued supremacy of the party. Inas- 
much as the person appointed knew that he would be 
removed from office if his party should be defeated, it was 
expected that he would be moved by this consideration to 
work for its success. 

There were few removals by the early Presidents, but 
Jackson made ten times as many as had been made in all of 



172 THE GOVERNMENT OF THE UNITED STATES 

the ten preceding presidential terms. The " Spoils System " 
was named in the United States Senate when Senator 
Marcy, of New York, in 1832, was discussing the practice 
as upheld by the politicians of the day, particularly by the 
New York politicians. "When they are contending for 
victory," he said, "they avow the intention of enjoying the 
fruits of it. If they are defeated, they expect to retire from 
office; if they are successful, they claim, as a matter of right, 
the advantages of success. They see nothing wrong in 
the rule that to the victor belong the spoils of the enemy." 
The practice of removing from office adherents of other 
parties and of making appointments for party purposes 
became, in the course of time, so general that the purity of 
the political life of the Republic was seriously threatened. 
Seeing that the power of appointment and removal was 
being used for personal and party ends, and that the public 
welfare and the efficiency of the Government were suffering 
serious deterioration, a large part of the people determined, 
if possible, to check the evil, and made a persistent demand 
for a reform of the civil service. This reform has been so far 
carried out that a Merit System, as opposed to the "Spoils 
System," has been established. The Merit System provides 
that persons shall be appointed inferior officers and em- 
ployees only after a proper examination, and that these 
appointments shall be made with sole reference to the fitness 
of the persons appointed to perform the duties devolving 
upon them. It provides, moreover, that even in cases where 
the administration is changed from one party to the other, 
these officers or employees shall hold their offices or employ- 
ment during good behavior. 

Topics. — The theory of republican government with respect to 
officers. — The practice. — Description of "Spoils System." — Jack- 
son's removals. — Origin of the name " Spoils System." — Reason for 
demanding reform in the civil service. — Definition of the Merit 
System. — Its fundamental provision. 



POWERS AND DUTIES OF THE FEDERAL EXECUTIVE 173 

References. — Bryce, American Commonwealth, i, 63, 394, 
500, 642; ii, 50, 120, 131-142, 166, 241, 589, 846; Hinsdale, Ameri- 
can Government, 277 ; Lalor, Cyclopaedia, iii, 782 ; Macy, Our Govern- 
ment, 134-138. 

96. Civil Service Act. — The demand for the regulation 
and improvement of the civil service resulted in an act for 
the purpose, approved January 16, 1883. This act author- 
ized the President to appoint, with the advice and consent 
of the Senate, the United States Civil Service Commission, 
to be composed of three persons, not more than two of 
whom should be adherents of the same party. The duties 
of the commission under this act are, among other things, 
to aid the President in making rules for carrying the civil- 
service law into effect; to hold competitive examinations for 
testing the fitness of applicants for public service, then or 
afterward to be classified; and to make such arrangements 
that offices, places, and employments should be filled by 
selections, according to grade, from among those graded 
highest as a result of such competitive examination. Ex- 
ercising his constitutional powers, and authorized by Section 
1753 of the Revised Statutes and by the Civil Service Act of 
1883, the President, from time to time, makes and promul- 
gates rules governing in detail the action of the Civil Service 
Commission. 

Section 1753 of the Revised Statutes is as follows: " The 
President is authorized to prescribe such regulations for the 
admission of persons into the civil service of the United 
States as may best promote the efficiency thereof, and ascer- 
tain the fitness of each candidate in respect to age, health, 
character, knowledge, and ability for the branch of service 
into which he seeks to enter; and for this purpose he may em- 
ploy suitable persons to conduct such inquiries, and may pre- 
scribe their duties, and establish regulations for the conduct of 
persons who may receive appointments in the civil service." 



174 THE GOVERNMENT OF THE UNITED STATES 

Topics. — Substance of the Civil Service Act. — Duties of the 
Civil Service Commission. — Rules governing the Civil Service Com- 
mission. — Section 1753 of the Revised Statutes. 

References. — Bryce, American Commonwealth, i, 646; ii, 27, 
59, 139, 161, 609, 847; Ford, American Citizen's Manual, Part I, 
116-144; Hart, Practical Essays, 81-98; Hart, Actual Government, 
288-295; Hinsdale, American Government, 277, 278; Lalor, Cy- 
clopaedia, i, 478; Macy, Our Government, 139. 

97. Diplomatic Agents. — The President is directly au- 
thorized by the Constitution to appoint, among other of- 
ficers, "ambassadors, other public ministers, and consuls." 
Ambassadors and diplomatic envoys or ministers and charges 
d'affaires are agents sent by one sovereign state to another 
sovereign state "to represent one state at the capital of 
another, or to negotiate and treat with that other on national 
affairs." They may be sent on temporary or on extraor- 
dinary missions, or to become residents, during the pleasure 
of the appointing power, at the capital of the state to which 
they are sent. The right to send and to receive diplomatic 
agents is an incident of sovereignty. A state, however, is 
competent to refuse at any time to receive a diplomatic 
agent from another state ; but if this is done without 
reasonable grounds, the act may be considered as a rup- 
ture of friendly relations. A diplomatic agent within the 
boundaries of a foreign nation enjoys certain privileges 
and immunities not accorded to the ordinary member of 
his nation. He " cannot be tried for a criminal offense by 
the courts of the state to which he is accredited, and cannot, 
as a rule, be arrested "; and this immunity is enjoyed also by 
the couriers of the legation. 1 Children born to a diplomatic 
agent within the limits of a foreign country do not become 
subjects of that country, but retain the nationality of the 
father; but any real property held by a diplomatic agent 

1 Hall, International Law, 172. 



POWERS AND DUTIES OF THE FEDERAL EXECUTIVE 175 

within the limits of the country to whose government he is 
accredited is under the jurisdiction of that government. 
" His personal effects and the property belonging to him as 
representative of his sovereign are not subject tc taxation. 
Otherwise he enjoys no exemption from taxes or duties as 
of right. By courtesy, however, most, if not all, nations 
permit the entry, free of duty, of goods intended for his 
private use." 1 

Topics. — Who are diplomatic agents. — Objects of their mission. 
— Reception or rejection. — Privileges and immunities. 

References. — Dawes, How We Are Governed, 209-211; Fiske, 
Civil Government, 246; Hinsdale, American Government, 279; Hart, 
Actual Government, 433-436; Lalor, Cyclopaedia, i, 30-33; Hall, In- 
ternational Law, 172-185. 

98. Consuls. — Consuls are persons appointed by govern- 
mental authorities to reside in a foreign country, in order 
to watch over the interests of citizens of the country they 
represent who may be visiting or engaged in business in 
those countries, and to protect, facilitate, and extend com- 
merce between the nation to which they are sent and the 
nation sending them. In the performance of their duties 
" they receive the protests and reports of captains of vessels 
of their nation with reference to injuries sustained at sea; 
they legalize acts of judicial or other functionaries by their 
seal for use within their own country; they authenticate 
births and deaths; they administer the property of subjects 
of their state dying in the country where they reside; they 
send home shipwrecked and unemployed sailors and other 
destitute persons; they arbitrate on differences which are 
voluntarily brought before them by their fellow country- 
men, especially in matters relating to commerce, and to 
disputes which have taken place on board ship; they exer- 
cise disciplinary jurisdiction, though not, of course, to the 

1 Hall, International Law, 184. 



176 THE GOVERNMENT OF THE UNITED STATES 

exclusion of the local jurisdiction, over the crews of vessels 
of the state in the employment of which they are; they see 
that the laws are properly administered with reference to its 
subjects, and communicate with their government if in- 
justice is done; they collect information for it upon com- 
mercial, economical, and political matters." 1 

Consular officers are divided into four classes of different 
grades; namely, consuls general, consuls, vice consuls, and 
consular agents. A consular officer is not necessarily a 
citizen of the nation he represents. He may be a citizen 
or a subject of the country in which his duties are performed 
or of a third country. When a consul is appointed, his 
commission or patent is communicated to the government 
of the country in which he is to reside; but he may not 
begin to perform his duties until he has received permission 
from that government. The order giving this permission is 
called an exequatur, and may be revoked by the government 
that issued it. 

Diplomatic duties are sometimes imposed upon consuls. 
In such cases they are accredited, like other diplomatic 
agents, near the proper governmental authorities of the 
nations to which they are sent; and their consular char- 
acter, under these conditions, is subordinated to their supe- 
rior diplomatic character. While charged with diplomatic 
duties they enjoy whatever privileges or immunities attach 
to diplomatic agents of the rank to which they are assigned. 

In some of the non-Christian countries, in which resident 
foreigners are exempt from the native law, European and 
American consuls exercise extraordinary powers. Their 
position is usually determined by treaties between their 
states and the states to which they are sent. They act as 
judges and hold courts at their consulates. Their judicial 
authority covers all civil and criminal matters in which 

1 Hall, International Law, 316, 317. 



POWERS AND DUTIES OF THE FEDERAL EXECUTIVE 177 

their countrymen are concerned. The principal countries 
in which foreign consuls exercise these extraordinary powers 
are Turkey, Siam, and China. Japan was formerly included 
in this list; but her progress and adoption of Western in- 
stitutions led to the formation in 1894, of treaties with the 
United States and other countries, through which the juris- 
diction of the consular courts in Japan came to an end 
in 1899. In the other countries mentioned the practice is 
still to try offenses by natives against foreigners in the local 
courts; but offenses by foreigners against natives are tried 
in the consular court of the country to which the offending 
foreigner belongs. If the case is between two foreigners, 
it is tried in the court of the defendant's consul; that is to 
say, the person who is accused has the right to be tried 
before the court of his own consul. 

Topics. — Definition of a consul. — Statement of his duties. — 
Four classes of consular officers. — Consul not necessarily a citizen 
of the country he represents. — An exequatur. — Consuls performing 
diplomatic duties. — Extraordinary powers of consuls in semicivil- 
ized countries. 

References. — Hall, International Law, see Index under Con- 
suls ; Fiske, Civil Government, 246 ; Lalor, Cyclopaedia, i, 613. 

99. The Executive Departments. — The Constitution pro- 
vides for a separation of legislative, executive, and judi- 
cial powers; but the distribution of executive functions 
among different departments was made by Congress. The 
makers of the Constitution, however, presumed that such 
departments would be established; for they provided, 
through the Constitution, that the President "may require 
the opinion in writing of the principal officer of each of the 
executive departments upon any subject relating to the du- 
ties of their respective offices." In the Constitution the only 
other reference to the departments is contained in the clause 
which affirms that "the Congress may by law vest the ap- 



178 THE GOVERNMENT OF THE UNITED STATES 

pointment of such inferior officers as they .may think proper 
in the President alone, in the courts of law, or in the heads 
of departments." There are now nine executive depart- 
ments : 

1. Department of State. 

2. Department of the Treasury. 

3. Department of War. 

4. Department of Justice. 

5. Post Office Department. 

6. Department of the Navy. 

7. Department of the Interior. 

8. Department of Agriculture. 

9. Department of Commerce and Labor. 

The heads of seven of these departments are called sec- 
retaries. The head of the Post Office Department is called 
the Postmaster-General, and the head of the Department of 
Justice is the Attorney-General. The heads of the several 
departments constitute the President's Cabinet or private 
council. They are his immediate advisers with reference 
to executive affairs, and through them he exercises the au- 
thority conferred upon him by the Constitution. Unlike 
the members of the English Cabinet they have no vote in 
the national Legislature. They are prevented from being 
members of Congress by the constitutional provision that 
" no person holding any office under the United States shall 
be a member of either house during his continuance in 
office." They are appointed by the President with the con- 
sent of the Senate; but as these officers hold a somewhat 
intimate personal relation to the President and, in a meas- 
ure, act for the President, the Senate seldom, if ever, 
refuses its approval. 

Topics. — Constitutional separation of powers. — Creation of 
executive departments. — Language of Constitution respecting de- 
partments. — Enumeration of executive departments. — Titles of 



POWERS AND DUTIES OF THE FEDERAL EXECUTIVE 179 

heads of departments. — The Cabinet. — Comparison with English 
cabinet. 

References. — Dawes, How We Are Governed, 204-206; Fiske, 
Civil Government, 244; Hinsdale, American Government, 284; Hart, 
Actual Government, 277-279; Wilson, Congressional Government, 
262-293. 



ioo. Department of State. — Under the Articles of Con- 
federation the Congress created a Department of Foreign 
Affairs, which was the immediate antecedent of the existing 
Department of State. Its chief officer was called "The 
Secretary to the United States of America for the Depart- 
ment of Foreign Affairs." The functions of the Secretary 
of Foreign Affairs were defined in an act passed by Congress 
before the adoption of the Constitution. After the adoption 
of the Constitution Congress established a department under 
the same designation. The act establishing it was approved 
July 27, 1789. By an act passed about six weeks later, 
September 15, 1789, the name of the department was 
changed from the " Department of Foreign Affairs " to the 
"Department of State." The duties of the head of this 
department were outlined by the first section of the act 
creating it. They were "such duties as shall from time to- 
time be enjoined on or intrusted to him by the President of 
the United States, agreeable to the Constitution, relative to 
correspondences, commissions, or instructions to or with 
public ministers or consuls from the United States, or to 
negotiations with public ministers from foreign states or 
princes, or to memorials or other applications from foreign 
public ministers or other foreigners, or to such other matters 
respecting foreign affairs as the President of the United 
States shall assign to the said department." Besides the 
head of the department, the law of July 27 provided also 
for a chief clerk, who, in case the principal officer should be 
removed by the President, or in any other case of vacancy, 



180 THE GOVERNMENT OF THE UNITED STATES 

should, during such vacancy, have the charge and custody 
of all records and papers appertaining to the department. 

The Department of State, the first established and the 
first in rank, is the channel through which pass all com- 
munications between the Government of the United States 
and foreign governments, even though these communica- 
tions issue from the President. The Secretary of State, the 
head of this department, is, according to official etiquette, 
the only officer who may communicate with the official repre- 
sentatives of foreign powers, residing in the United States, 
respecting public affairs. He conducts all correspondence 
with the official representatives of the United States accred- 
ited to foreign governments and all correspondence of the 
President with the governors of States. He either negoti- 
ates treaties or has charge of all treaty negotiations. He 
is the custodian of the originals of all laws passed by Con- 
gress. He issues passports to American citizens intending 
to travel in foreign countries. The work of the Depart- 
ment of State is distributed among several bureaus: First, 
the Diplomatic Bureau; second, the Consular Bureau; third, 
the Bureau of Indexes and Archives; fourth, the Bureau of 
Accounts; fifth, the Bureau of Rolls and Library; sixth, the 
Bureau of Appointments; seventh, the Bureau of Citizenship; 
eighth, the Bureau of Trade Relations. 

Topics. — Antecedent of Department of State. — Its chief officer 
under Articles of Confederation. — Duties of the head of the depart- 
ment. — Bureaus of the department. 

References. — Dawes, How We Are Governed, 206-214; Fiske, 
Civil Government, 245; Hinsdale, American Government, 284; Lalor, 
Cyclopaedia, iii, 787; Macy, Our Government, 141. 

ioi. Department of the Treasury. — The Department of 
the Treasury was established by an act of Congress, ap- 
proved September 2, 1789. The head of the department is 
called the Secretary of the Treasury. The act establishing 
the department provided for a Comptroller, an Auditor, a 



POWERS AND DUTIES OF THE FEDERAL EXECUTIVE 181 

Treasurer, a Register, and an Assistant to the Secretary of 
the Treasury, in addition to the head of the department. 
The Secretary of the Treasury prepares plans for the manage- 
ment of the revenue and the support of the public credit; re- 
ports estimates of the public revenue and expenditures; super- 
intends the collection of the revenue; prescribes the form of 
keeping and stating public accounts and making returns; 
grants warrants, under legal limitations, for money to be 
issued from the treasury; makes reports to either house of 
Congress respecting all matters referred to him by the Senate 
or House of Representatives or appertaining to his office. 
The other officers of the department and their duties are as 
follows : 

1. Six Auditors: each receives and audits a certain part 
of the accounts of the general Government. 

2. Comptroller of the Treasury : construes the law relating 
to appropriations and methods of rendering and stating 
accounts. 

3. Treasurer: keeps United States moneys and disburses 
the same upon warrants drawn by the Secretary of the Treas- 
ury, countersigned by either Comptroller and recorded by the 
Register. 

4. Register: keeps all accounts of the receipts and expen- 
ditures of all public money and of all debts due to or from the 
United States. 

5. Chief of the Bureau of Engraving and Printing: pro- 
duces all the securities and similar work of the Government 
printed from engraved plates. 

6. Commissioner of Internal Revenue : under direction of 
the Secretary of the Treasury, supervises the assessment and 
collection of duties and taxes, providing for internal revenue. 

7. Comptroller of the Currency: supervises the national 
banks and enforces all laws relating to the issue and regula- 
tion of the national currency, which is secured by United 
States bonds. 



182 THE GOVERNMENT OF THE UNITED STATES 

8. Surgeon-General of Public Health and Marine Hospital 
Service : enforces regulations for the prevention and spread of 
contagious diseases ; supervises the quarantine service of the 
United States and the marine hospitals. 

9. Director of the Mint : controls all mints for the manu- 
facture of coin and all assay offices for the stamping of bars 
authorized by law. 

10. Chief of the Secret Service : charged with the detection 
of counterfeiting as well as with the general detective work of 
the Government. 

11. Supervising Architect: superintends the construction 
and repair of public buildings. 

Topics. — Establishment of the Department of the Treasury — 
Work of the Secretary of the Treasury. — Bureaus in the department. 

References. — Bryce, American Commonwealth, i, 86, 88, 175; 
Dawes,, How We Are Governed, 219-224; Fiske, Civil Government, 
247; Lalor, Cyclopaedia, iii, 933; Hinsdale, American Government, 
285. 

102. Department of War. — The Articles of Confederation 
provided that no State should keep any body of forces 
except such as the Congress should deem to be necessary for 
the defense of the State, but that every State might keep up 
a well-regulated and disciplined militia. The central Gov- 
ernment under the Articles of Confederation had no power to 
organize and equip an army of its own, but must, in case of 
need, rely on each of the several States to furnish its proper 
part of the number fixed by Congress. If the States had 
refused to furnish their several quotas, the plan of Con- 
gress to have an army for offensive and defensive opera- 
tions would, necessarily, have failed. After the experience 
of the Revolutionary War, this system was generally con- 
demned. It was found to be neither economical nor effi- 
cient. 

The Constitution created a new system. While it author- 



POWERS AND DUTIES OF THE FEDERAL EXECUTIVE 183 

ized Congress "to raise and support armies," it prohibited 
the appropriation of money to that end for a term longer than 
two years. It did for the army what it did for the Executive 
and for the central Government generally : it provided a large 
measure of independence and centralization. Under this 
enlarged authority of the Federal Government Congress may 
not only fix the size of the army, but may also provide directly 
for its support and control. In the exercise of this power, 
Congress has at different times made large temporary addi- 
tions to the Federal forces; and in this power lies the elas- 
ticity of the army, which makes it possible to adapt it to any 
emergency. Following are the occasions on which the army 
was temporarily increased to meet extraordinary demands: 
The War of 1812, the Mexican War, the War of the Rebellion, 
the war with Spain. In the War of the Rebellion the army 
was expanded from a body of a few thousand to contain over ^ 
a million men. 

In order that an army may be an effective instrument of 
coercion and destruction, it is organized on the principle of 
absolute and immediate obedience of the inferior to the su- 
perior. In this respect all armies are alike. The army of a 
republic is like the army of a monarchy. Both have their 
distinctly observed grades of inferiority and superiority, and 
absolutism characterizes the rule of both. 

In 1785, four years before the adoption of the Constitu- 
tion, the Continental Congress passed "An Ordinance for 
Ascertaining the Powers and Duties of the Secretary of War. " 
After the Constitution had been adopted, Congress passed an 
act establishing an executive department to be called the 
"Department of War. " The principal officer in this depart- 
ment is the Secretary of War, who is required to conduct the 
business of the department in such a manner as the President 
shall direct. Under the President he exercises a general con- 
trol over the affairs of the army. The offices of the War De- 
partment are those of: (1) Adjutant General; (2) Inspector 



184 THE GOVERNMENT OF THE UNITED STATES 

General; (3) Quartermaster General; (4) Commissary Gen- 
eral; (5) Surgeon General; (6) Paymaster General; (7) 
Chief of Engineers; (8) Chief of Ordnance; (9) Judge- Advo- 
cate General; (10) Chief Signal Officer; (11) Chief of Bu- 
reau of Insular Affairs; and the Board of Engineers of Rivers 
and Harbors. Through the Bureau of Insular Affairs, es- 
tablished in 1902, the Secretary of War exercises general con- 
trol over the insular dependencies. 

Topics. — Military power under the Articles of Confederation 
— The system provided by the Constitution.— Meaning of elasticity 
of the army. — Character of the army organization. — Duties of the 
Secretary of War. — Officers of the department under the Secretary 
of War. — Bureau of Insular Affairs. 

References. — Bryce, American Commonwealth, i, 86; Dawes, 
How We Are Governed, 214-218; Fiske, Civil Government, 248; 
Hinsdale, American Government, 286; Lalor, Cyclopaedia, iii, 1087. 

103. Department of the Navy. — Prior to 1798, the naval 
force of the nation was unimportant, and all matters per- 
taining to it were committed to the Department of War. 
In a speech to Congress, in 1796, Washington affirmed 
that a naval force was indispensable to protect external 
commerce, and that such a force was necessary to secure 
respect for a neutral flag, to vindicate it from insult or ag- 
gression, and to guard it against the depredations of nations 
at war. A Department of the Navy was established by act 
of Congress, approved April 30, 1798, which provided, "That 
there shall be an executive department under the denom- 
ination of the Department of the Navy, the chief officer 
of which shall be called the Secretary of the Navy, whose 
duty it shall be to execute such orders as he shall receive 
from the President of the United States, relative to the 
procurement of naval stores and materials, and the con- 
struction, armament, equipment, and employment of vessels 
of war, as well as other matters connected with the naval 



POWERS AND DUTIES OF THE FEDERAL EXECUTIVE 185 

establishment of the United States." This act repealed so 
much of the act establishing the Department of War as 
vested in that department any power over the navy. But 
it was not until 1812 that important steps were taken to 
organize and maintain a permanent naval force; and then 
the project was opposed by those who held that agriculture 
was the chief interest of the country, and that it would be 
unwise to impose upon it a burden of taxation to maintain a 
navy to protect such commerce as the nation had. At that 
time the navy had three frigates of the first class and seven of 
the second class. The frigates of the first class were the Pres- 
ident, the United States and the Constitution. Two of the 
frigates of the second class were entirely unseaworthy, and 
the others were in need of extensive repairs. The distin- 
guished achievements of the navy have secured for it the 
generous support of the nation. The affairs of the Navy 
Department are distributed for the purpose of administratioir* 
among several subordinate organizations: (1) the Division of 
Operations; (2) the Division of Personnel; (3) the Division 
of Material; (4) the Division of Inspections; (5) the Under 
Office of the Assistant Secretary. 

Topics. — Creation of Department of the Navy. — Previous con- 
trol of naval affairs. — Original opposition to the development of a 
navy. — Present attitude of the nation toward the navy. — Divisions 
of the department. 

References. — Bryce, American Commonwealth, i, 68; Dawes, 
II ow We Are Governed, 228-232; Fiske, Civil Government, 248; 
Hinsdale, American Government, 287, 288; Lalor, Cyclopaedia, ii, 
993. 

104. Department of Justice. — The office of Attorney- 
General of the United States was created by Congress in 
September, 1789, to embrace the various law offices of the 
Government, whose function it was to interpret and apply 



186 THE GOVERNMENT OF THE UNITED STATES 

the laws. Their officers — attorneys, marshals, reporters 
and clerks — became members of the Department of Justice 
when it was organized in 1870. They continued to inter- 
pret and apply the statutes governing the official business 
of the Government; but after the organization of the de- 
partment they acted under the supervision of the Attorney- 
General. Before the creation of the department they were 
more or less independent, and there might readily appear 
a considerable diversity in their construction and applica- 
tion of the laws. Bringing them under one superior officer 
produced a desirable result in making their interpretation 
of the laws uniform. The Attorney-General is a member of 
the Cabinet. He advises the President on questions of 
law and exercises supervision over the district attorneys 
and marshals of the United States courts. He sometimes 
argues cases of great importance before the Supreme Court 
and, on rarer occasions, before subordinate United States 
courts; but the ordinary business of the Government before 
the courts is conducted by the Solicitor-General and the 
Assistant Attorneys-General. 

Topics. — Effect of creating office of Attorney-General. — Posi- 
tion and duties of Attorney-General. — Conduct of business before 
the United States Courts. 

References. — Dawes, How We Are Governed, 224; Lalor, Cy- 
clopcedia, ii, 663 ; Hinsdale, American Government, 286. 

105. Post-Office Department. — When the United States 
became independent, the new Government inherited the 
postal system that had been established in the colonies by 
the English Government. Under the necessities of an in- 
creasing population and the increasing need of communica- 
tion over a vastly extended territory, this system has grown 
to its present size. At its head stands the Postmaster- 
General, aided by four Assistant Postmasters-General, all 
of whom are appointed by the President. The business of 



POWERS AND DUTIES OF THE FEDERAL EXECUTIVE 187 

the department is carried on by a large number of clerks, 
postmasters, and letter carriers. 

The Postmaster-General manages the general affairs of 
the department, including the foreign and domestic mail 
service. He can establish post offices, and has power to 
appoint the postmasters whose salaries are severally less 
than $1,000. These are postmasters of the fourth and fifth 
classes, and comprise about six-sevenths of the whole num- 
ber, or about 60,000. The other seventh constitutes the 
first, second, and third classes and are appointed by the 
President. Fourth-class postmasters in the NeAV England 
States, New York, New Jersey, Pennsylvania, Ohio, Indiana, 
Illinois, Wisconsin, and Michigan, make up 15,488 positions 
covered in the classified service by an executive order cf 
November 30, 1908. This order represents the beginning 
of the movement which will no doubt eventually include 
all the fourth- class postmasters in the country. 

Topics. — Antecedents of this department. — Head of the de- 
partment. — Chief subordinates. — Duties of the Postmaster-Ceneral. 
— Appointment of postmasters. — Post office and the Civil Service 
act. 

References. — Dawes, How We Are Governed, 226-228; Fiske, 
Civil Government, 248; Hinsdale, American Government, 287; Lalor, 
Cyclopaedia, in, 310. 

106. Department of the Interior. — For more than half 
a century after the organization of the Federal Government, 
the work now performed under the direction of the Depart- 
ment of the Interior was distributed among the Depart- 
ments of State, the Treasury, War, and the Navy. By an 
act approved March 3, 1849, the Department of the Interior 
was established. It was designated in the law, the Home 
Department; but the chief officer was called the Secretary of 
the Interior. As at present organized this department 
covers a large range of diverse affairs that have been trans- 



183 THE GOVERNMENT OF THE UNITED STATES 

ferred to it from other departments. Patents, Copyrights, 
the Census, and Public Documents were transferred to it 
from the Department of State; the Administration of Public 
Lands, Mines and Mining, and Judicial Accounts from the 
Treasury Department; Indian Affairs from the War Depart- 
ment; and Pensions from the War and Navy departments. 
In addition to these, several other important interests have 
teen brought under the jurisdiction of the Secretary of the 
Interior, among which are Education, Pacific Railways, Pub- 
lie Surveys, the Territories, and the Reclamation Service. 

Topics. — Organization of the Department of the Interior. — 
Previous control of the work assigned to it. — Field now occupied 
by it. 

References.— Dawes, How We Are Governed, 232-242; Hins- 
dale, American Government, 288; Lalor, Cyclopaedia, ii, 567 ; Willough- 
by ; Rights and Duties, 224-234. 

107. Department of Agriculture. — In 1862, a so-called 
Department of Agriculture was organized. It was, however, 
not a department in the sense attributed to that term when 
applied to the organization under the direction of the Sec- 
retary of War. Like the so-called Department of Educa- 
tion, in its original form it was an unassigned bureau. The 
object of the organization, as defined in the law creating it, 
was " to diffuse among the people of the United States useful 
information on subjects connected with agriculture in the 
most general and comprehensive sense of that term, and to 
procure, propagate, and distribute among the people new 
and valuable seeds and plants." The head of this bureau 
was called the Commissioner of Agriculture. In the course 
of time, in view of the increasing importance of the agri- 
cultural interests of the country, it was determined, without 
materially changing its functions, to raise this bureau to 
the dignity of an executive department and to give the 
chief of the bureau the title of Secretary of Agriculture. He 



POWERS AND DUTIES OF THE FEDERAL EXECUTIVE 189 

was at the same time made a member of the President's 
Cabinet. This was done in 1889. 

Topics. — Organization of the Department of Agriculture. — 
Nature of the department at first. — Object as defined by law. — 
Title and position of the head of the department at first and later. 

References. — Dawes, How We Are Governed, 243; Hinsdale, 
American Government, 288; Willoughby, Rights and Duties, 236. 

108. Department of Commerce and Labor. — By an act 

approved February 14, 1903, there was established a Depart- 
ment of Commerce and Labor. With respect to appoint- 
ment, salary, and tenure of office the secretary of this de- 
partment is placed under the same regulations as the heads 
of the other executive departments. It was made the duty 
and province of this department " to foster, promote, and 
develop the foreign and domestic commerce, the mining, 
manufacturing, shipping and fishery industries, the labGr 
interests, and the transportation facilities of the United 
States." Several bureaus and offices previously under the 
jurisdiction of the Treasury Department were transferred 
to the Department of Commerce and Labor. Among these 
may be noted the Light-House Establishment, the Steam- 
boat Inspection Service, the Bureau of Navigation, the 
United States Shipping Commissioners, the National Bureau 
of Standards, the Coast and Geodetic Survey, the Commis- 
sioners General of Immigration and the immigration service 
at large. The Census Office was transferred to this depart- 
ment from the Department of the Interior. The jurisdiction 
of the Department of Commerce and Labor was extended 
over Labor, the Bureau of Fisheries, the Bureau of Foreign 
Commerce, which had previously been in the Department 
of State. By these changes, the Treasury Department, 
the Department of the Interior, and the Department of 
the State were relieved of work which had only a remote 
connection with their principal aims, Two other bureaus 



190 THE GOVERNMENT OF THE UNITED STATES 

were created and placed under the jurisdiction of the 
Department of Commerce and Labor. These were a Bureau 
of Manufactures and a Bureau of Corporations. The juris- 
diction, supervision, and control previously possessed and 
exercised by the Department of the Treasury over the fur- 
seal, salmon, and other fisheries of Alaska, and over the 
immigration of aliens into the United States, belongs now 
to the Department of Commerce and Labor. The various 
functions and duties of this department and its subordinate 
offices and bureaus are set forth in the act of foundation, 
called "An Act to establish the Department of Commerce 
and Labor." 

Topics. — Department of Commerce and Labor, established 
1903. — Duty and province of this department. — Bureaus transferred 
from the Treasury Department. — Fisheries. 

References. — Fiske, Civil Government, 250, 251. 

109. The Cabinet. — The heads of the several depart- 
ments constitute what is known as the President's Cabinet. 
It is appointed by him and is responsible to him alone; yet 
as such this body has no constitutional or legal recognition. 
The Constitution affirms that the President "may require 
the opinion, in writing, of the principal officer in each of the 
executive departments upon any subject relating to the 
duties of their respective offices." In this lack of legal 
recognition the President's Cabinet is like the English 
Cabinet, but it is unlike it in every other respect. The 
members of the President's Cabinet may not be members 
of Congress; while the English Cabinet is, in effect, a com- 
mittee of Parliament. The English Cabinet resigns if 
censured by a vote of Parliament, but the votes of Congress 
have no influence on the tenure of the American Cabinet. 
Action by the President on the advice of his Cabinet is held 
to be the President's action, and he alone is responsible. 
Action by the Crown on the advice of the English Cabinet is 



POWERS AND DUTIES OF THE FEDERAL EXECUTIVE 191 

held to be the Cabinet's action, and it alone is responsible. 
A member of the President's Cabinet has two conspicuous 
classes of duties: he is expected to know and direct the 
affairs of his department, and to advise the President, 
first, respecting all matters that lie within his administra- 
tive jurisdiction, and, second, respecting all matters of a 
general nature in which the executive branch of the Govern- 
ment is interested. 

Topics. — Members of the Cabinet. — In what respects like the 
English Cabinet. — Relation of the President to his Cabinet. — Duties 
of members of the Cabinet. 

References. — Bryce, American Commonwealth, i, 86; ii, 157; 
Dawes, How We Are Governed, 205, 243-246; Fiske, Civil Govern- 
ment, 244; Coodnow, Comparative Administrative Law, i, 134; 
Hinsdale, American Government, 289. 

i io. Independence of the Executive. — Under the En^ 
lish system the practical executive is directly responsible 
to the Parliament. If the Parliament persistently opposes 
a measure urged by the Cabinet under the leadership of 
the Prime Minister, the Prime Minister and his Cabinet 
must resign; and another Prime Minister will be named 
and asked to form a new Cabinet, which must conform to 
the opinions of the majority of the Parliament. In the 
United States, if the majority of the Congress opposes 
the President, it does not in any way affect his tenure of 
office or that of his Cabinet. There may be a difference of 
opinion between the President and Congress concerning the 
desirability of a proposed law. If the President is opposed 
to the bill, he may veto it. By this the opposition becomes 
open and declared. If it is not possible for the Congress to 
rally at least two-thirds of each house in support of the bill, 
this incident is closed by the veto, and the President wins 
in the contest. If two-thirds of each house come to the 
support of the vetoed bill and vote for it, the incident is 



192 THE GOVERNMENT OF THE UNITED STATES 

closed; and in this case the Congress wins in the contest. 
But whichever way the contest is closed, neither party is 
affected in his position. Neither resigns, and both enter 
upon the consideration of the next measure with the same 
independence as before. This independence of the Execu- 
tive constitutes a check on complete party government. 
In England, where a Cabinet must be in complete harmony 
with the majority of the Commons, this check does not 
exist. Party government, as it is understood in Europe, 
does not prevail in the United States. The aim of the 
United States has been, through the use of various checks 
and limitations, to make the Government express the per- 
manent will of the nation rather than its occasional will. 

Topics. — Effect of opposition in England between Cabinet and 
Parliament.- — Opposition of Congress to the President. — Executive 
independence in the United States. — Check to complete party gov- 
ernment. 

References. — Hinsdale, American Government, 289-291; Good- 
now, Comparative Administrative Law, i, 10. 



FOR ADVANCED STUDY 

The Presidency. — Burgess, Political Science, ii, 216-263, 307- 
319; Bryce, American Commonwealth, i, Chaps. V-IX; Ford, 
American Politics, Chap. XXII; Lockwood, Abolition of the Presi- 
dency; Cooley, Constitutional Law, Chap. V; Goodnow, Compara- 
tive Administrative Law, i, 59-82, 102-106, 127-138, 146-161 ; ii, 29- 
46; H. von Hoist, Constitutional Law, §§ 25, 26, 55, 59, 60; Jennings, 
Eighty Years of Republican Government, Chaps. Ill, IV; Lalor, 
Cyclopaedia, articles on Confirmation, Electoral College, Electoral Com- 
mission, Executive Impeachment, Removals, Resignations, Veto; 
Mason, Veto Power; Tucker, Constitution, Chap. XII. 

The National Convention. — Dallinger, Nominations for 
Elective Office, 1-50, 74-94; Official Proceedings of the National 
Conventions* 



POWERS AND DUTIES OF THE FEDERAL EXECUTIVE 193 

The Election of the President.— Stanwood, History of 
Presidential Elections; Hart, Practical Essays, No. Ill ; Bryce, 
American Commonwealth, \, Chap. VIII. 

The Powers of the President. — Conkling, Powers of the 
Executive Department; Harrison, This Country of Ours, Chap. IV- 
XIX; Hart, Practical Essays, No. IV; Lockwood, Abolition of the 
Presidency; Mason, Veto Power; Salmon, Appointing Power; Whi- 
ting, War Powers, 66-83, 15=9-325; Richardson, Messages of the 
Presidents. 

President Johnson's Conflict with Congress and His 
Impeachment. — Blaine, Twenty Years of Congress, ii, 1-15, 56-154; 
Lathrop, Seward, 404-418; Storey, Charles Sumner, 290-301, 346- 
351; Burgess, Reconstruction, 31-61, 142, 143, 157-194; Hart, Con- 
temporaries, iv, 468-475, 479-481, 489-492; Hart, Chase, 357-361; 
McCulloch, Men and Measures of Half a Century, Chap. XXVI; 
Blaine, Twenty Years of Congress, ii, Chap. XIV. 

The Heads of the Executive Departments. — Jameson, * 
Essays in Constitutional History, 116-185; Harrison, This Country 
of Ours, Chaps. VI, XI-XVIII; Bryce, American Commonwealth, i, 
Chaps. IX, XXV; Lowell, Essays on Government, No. 1; F. Snow, 
Defense of Congressional Government (American Historical Associa- 
tion, Papers), iv, 309-328; American Academy of Political Science, 
Annals, iii, 1-13; American Law Review, XXIII; Ford, American 
Politics, 383-396; Yale Law Journal, vii, 1-19; Burgess, Political 
Science, ii, 262, 263, 311-316. 

Officers of the Civil Service and their Appointment. — 

Fiske, Civil Government, 275-279; Salmon, Appointing Power; 
American Historical Association, Report for 1899, i, 67-86; Lodge, 
Historical and Political Essays, 114-137; Senate Reports, 50th Con- 
gress, 1 Session, No. 507 ; House Reports, 53d Congress, 1 Session, 
No. 11; Messages of the Presidents; American Historical Review, i, 
270-283; ii, 241-261; iii, 270-291. 

Treaty with Texas for Annexation. — H. von Hoist, Cal- 
houn, 222-245; H. von Hoist, United States, ii, 602-657, 673-677; 
Schouler, United States, iv, 440-451, 457-459, 470; Burgess, Middle 
Period, 302-308; Wilson, Division, 144, 145; Schurz, Clay, ii, 235- 



194 THE GOVERNMENT OF THE UNITED STATES 

241; Benton, Thirty Years' View, ii, Chaps. CXXXV, CXXXVIII- 
CXLII. 

Political Aspect of the Texas Question. — Wilson, Division, 
145, 146; Schouler, United States, iv, 460, 461, 465-469, 471-474; 
H. von Hoist, United States, ii, 657-673; Shepard, Martin Van 
Bur en, 344-354; Johnston, American Politics, 145, 146; Hart, Con- 
temporaries, hi, 649-652; MacDonald, Select Documents, 343-346; 
H. von Hoist, United States, ii, 677-712; H. von Hoist, Calhoun, 
251-256; Burgess, Middle Period, 308-310, 318-323; Schouler, 
United States, iv, 482-488; Benton, Thirty Years' View, ii, Chaps. 
CXLVII, CXLVIII. 

The Introduction of the Merit System into the Civil 
Service. — Political Science Quarterly, hi, 247-281; XIV, 240-250; 
Mason, Veto Power, § § 25-28 ; American Historical Association, 
Papers, ii, 47-52; Bryce, American Commonwealth, ii, Chap. LXV; 
Municipal Affairs, iv, 708-720; Goodnow, Comparative Administra- 
tive Law, ii, 34-46; Eaton, Government of Municipalities, Chaps. 
VII, VIII; Lodge, Historical and Political Essays, 114-137; Curtis, 
Orations and Addresses, ii, 477-508; Hart, Practical Essays, No. 
IV; National Civil Service Reform League, Proceedings; United 
States Civil Service Commission, Annual Report; New York Civil 
Service Commission, Annual Report; Atlantic Monthly, LXVII, 
252-257; LXXV, 239-246; Hart, 'Contemporaries, hi, § 158; iv, §§ 
197, 199, 202. 



CHAPTER VII 

THE FEDERAL COURTS 

in. Need of Federal Courts. — Under the Articles of 
Confederation the central power could not deal directly 
with the individual citizen; it could deal with him only 
through the government of the State to which he belonged. 
Under the Constitution the Federal Government holds im- 
mediate relations with the individual citizen; its laws apply 
to him, and the authority of its administrative officers % 
reaches him directly. In the new position assumed by the 
Federal Government under the Constitution there were the 
following needs for Federal courts: 

1. The laws passed by Congress bind directly the in- 
dividual citizen in whatever State or Territory he may live, 
and Federal courts are needed to interpret and apply these 
laws. 

2. The Constitution having been established as the 
supreme law of the land, Federal courts are needed as an 
authority to which appeal may be made to determine the 
harmony or conflict between the Constitution and the laws 
passed by Congress or by the several States, and thus to 
provide for maintaining the supremacy of the Constitution. 

3. Federal courts are needed to decide such questions as 
in their nature may not properly be brought under the 
authority of State courts. 

The system of United States courts covers the same 
territory as the whole body of State courts; and as every 

195 



196 THE GOVERNMENT OF THE UNITED STATES 

citizen is at the same time directly under Federal laws and 
State laws, so is he directly subject to Federal courts and 
State courts. He is brought before the Federal courts for 
the violation of Federal laws and before the State courts for 
the violation of State laws. In the organization of the 
Federal courts the United States Marshal corresponds to 
the sheriff in the State courts. It is his duty to carry out 
the writs, judgments, and orders of the court. In every 
judiciary district there is not only a marshal but also a clerk 
of the court for the Federal court and a public prosecutor 
who is called the United States District-Attorney. All 
officers of these courts are subordinated to the Attorney- 
General. 

Topics. — The Federal Government's relation to the individual 
citizen. — Need of Federal courts. — Territory covered by United 
States courts. — The United States Marshal. — Duty of the marshal. 
— Other officers. 

References. — Bryce, American Commonwealth, i, 35, 225, 241; 
Dawes, How We Are Governed, 252-256; Fiske, Civil Government, 260; 
Hinsdale, American Government, 292; Lalor, Cyclopaedia, ii, 647; 
Miller, Lectures, ?A0-315. 

U2. Scope of Federal Courts. — The Supreme Court was 
created by the Constitution, and Congress was empowered 
to establish other courts. All the United States courts 
except the Supreme Court were created by Congress. That 
part of the judicial power of the United States which 
has not been given to the Federal courts remains with the 
States. The power of the State courts is, therefore, all 
judicial power that has not been conferred upon the Federal 
courts, just as the power of the State legislatures is all legis- 
lative power that has not been conferred upon Congress. 
Every case that cannot be definitely shown to belong to a 
Federal court falls within the jurisdiction of a State court. 

The .scope of the Federal courts is indicated by an 



THE FEDERAL COURTS 197 

enumeration and consideration of the cases which, in accord- 
ance with law, fall under the jurisdiction of these courts: 

. 1. All cases in law and equity arising under the Con- 
stitution, the laws of the United States, and treaties made 
under the authority of the United States. 

• 2. All cases affecting ambassadors, other public minis- 
ters, and consuls. 

3. All cases of admiralty and maritime jurisdiction. 

4. Controversies to which the United States shall be 
a party. 

5. Controversies between two or more States; between 
citizens of different States; between citizens of the same 
State claiming lands under grants of different States; and 
between a State or the citizens thereof and foreign States, 
citizens, or subjects. 

The eleventh amendment abrogated the possibility of 
cases "between a State and citizens of another State," as 
originally provided in the second section of the third article 
of the Constitution. The language of this amendment is 
that "the judicial power of the United States shall not be 
construed to extend to any suit in law or equity, commenced 
or prosecuted against one of the United States by citizens 
of another State, or by citizens or subjects of any foreign 
state." 

Topics. — Origin of United States courts. — Power of the State 
courts. — What cases belong to State courts. — What cases belong 
to Federal courts. — The eleventh amendment. 

References. — Dawes, Hoio We Are Governed, 261, 269-275; 
Fiske, Civil Government, 260-262 ; Hinsdale, American Government, 
297-302; Miller, Lectures, 320-337. 

113. The Supreme Court. — Although the Constitution 
created the Supreme Court, it did not fix the number of 
judges. This number is determined by Congress. At 
present there are nine, of whom one is the Chief Justice and 



198 THE GOVERNMENT OF THE UNITED STATES 

eight are Associate Justices. They are appointed by the 
President and confirmed by the Senate. They hold office 
for life or during good behavior. The fact that they cannot 
be removed except by impeachment is thought to give them 
independence and place them beyond the reach of unworthy 
influences. The Supreme Court sits in Washington, its 
regular annual session extending from October till July. 

Some cases may be brought to the Supreme Court with- 
out having been before any other court. There are two 
classes of such cases. In the first class are those cases which 
"affect ambassadors, other public ministers, and consuls"; 
in the second class, those in which the State is a party. In 
these cases the Supreme Court is said to have original juris- 
diction. 

Some cases are brought to the Supreme Court after they 
have been tried in a lower court. Such cases are appealed 
to the Supreme Court; and in these cases the Supreme 
Court is said to have appellate jurisdiction. All cases that 
may be appealed from a lower court to the Supreme Court, 
with few exceptions, must involve an amount exceeding 
$5,000. The exceptions are such cases as may be appealed 
from the circuits to the Supreme Court without regard to 
the value of the controversy. 1 

The Supreme Court holds appellate jurisdiction over the 
Court of Claims which was instituted in 1855 with three 
judges to determine all cases against the United States. 
Since 1863 this court has been composed of five judges. 
Cases may be appealed to the Supreme Court also from the 

1 Formerly an appeal from the district courts directly to the Su- 
preme Court occurred in general only when the district courts exercised 
circuit court powers. In all other cases, with the exception of prize 
cases, there was an appeal from the district court to the circuit court. 
The Judiciary act of March 3, 1891, abolished the appellate jurisdiction 
from the district to the circuit court in all cases and established the 
Circuit Court of Appeals. (See § 116.) 



THE FEDERAL COURTS 199 

courts of the Territories of the United States, from the 
supreme court of the District of Columbia, from the State 
courts, and from the supreme court of the Philippine 
Islands. 

, During the annual term of the Supreme Court, sessions 
are usually held on Monday, Tuesday, Wednesday, Thurs- 
day, and Friday. The hours of the session are from twelve 
to four o'clock, and the place of meeting is in the capitol 
building at Washington. 

The justices meet on Saturday morning to consider and 
decide the cases that have been argued before them during 
the week. If the justices are agreed on a decision, the prep- 
aration of a written opinion is assigned to some member 
of the court. It sometimes happens in important cases 
that no complete agreement is reached. In such cases an 
opinion of the court approved by a majority of the justices 
is issued, and also a dissenting opinion signed by the mi- 
nority. There have been cases in which each justice has 
delivered an individual opinion. 

Topics. — Number of Supreme Court judges. — Appointment 
and term of office. — Original jurisdiction of Supreme Court. — 
Appellate jurisdiction. — Time and place of sessions. — Time and 
mode of rendering decisions. 

References. — Bryce, American Commonwealth, i, 229; 262-265; 
Hinsdale, American Government, 293-302; Hart, Actual Govern- 
ment, 301, 302; Miller, Lectures, 337-340, 344-350, 374-418. 

114. The District Courts. — The territory comprised in 
the States of the Union is divided into a number of districts 
for judiciary purposes. At present (1911) there are ninety- 
five districts, including Alaska and Hawaii. Their boundaries 
follow the boundaries of the States except in cases where a 
State is divided into two or more districts. Many States 
constitute each one district. This is true of Massachusetts, 
Rhode Island, New Hampshire, Vermont, Maine, Connect!- 



200 THE GOVERNMENT OF THE UNITED STATES 

cut, Maryland, and some of the other States. New York 
is divided into seven districts; Pennsylvania has five; Texas, 
four. In each district there is a district judge, who is 
required to reside in his district and to hold there annually 
at least two terms of court. In case of the disability of 
the district judge, the circuit judge within whose territory 
the district lies may hold court for him. The jurisdiction 
of the district courts is wholly original, since the district 
courts are the lowest in the series of Federal courts. They 
hear both civil and criminal cases. 

A district court may be held in and for the District of 
Columbia. This may be held by the Chief Justice of the 
supreme court of the District of Columbia or by any one of 
the five associate justices of that court. The district court 
for the District of Columbia exercises the same powers and 
jurisdiction as are exercised by any other district court; 
and appeals are taken from it to the Circuit Court of 
Appeals, as in the case of other district courts. 

Topics. — Number of district courts. — Boundaries of the dis- 
tricts. — Terms of district courts. — Jurisdiction of district courts. — 
District court of the District of Columbia. 

References. — Bryce, American Commonwealth, i, 231; Dawes, 
How We Are Governed, 265, 266; Fiske, Civil Government^ 260; 
Hinsdale, American Government, 294-304; Hart, Actual Government, 
303. 

115. The Circuit Courts. — The territory of the States of 
the Union is divided into nine circuits, corresponding with 
the number of justices of the Supreme Court, one of whom 
is allotted to each circuit. For each circuit the President, 
with the advice and consent of the Senate, appoints a cir- 
cuit judge who is required to reside in his circuit. Circuit 
courts are held by the circuit judge and by the district 
judge and by the justice of the Supreme Court allotted 
to the circuit, each sitting alone, or by any two of these 



THE FEDERAL COURTS 201 

judges sitting together. The justice of the Supreme Court 
presides when present. The district judge may hold a 
circuit court only within his district. 

Topics. — Number of circuits. — Method of holding circuit court. 
The three judges involved. — Restrictions on the district judge. — 
Terms of circuit courts. 

References. — Bryce, American Commonwealth, i, 231; Dawes, 
Hoiv We Are Governed, 265, 266; Hinsdale, American Government, 
295-303; Hart, Actual Government, 303; Macy, Our Government, 
109-112. 

116. The Circuit Court of Appeals. — The Circuit Court 
of Appeals was created by an act of Congress approved 
March 3, 1891. "Its primary purpose was to facilitate the 
prompt disposition of causes in the United States Supreme 
Court by relieving that court of the overburden of business 
resulting from the rapid growth of the country and the con- 
sequent steady increase of litigation." The act establishing 
this court provided for the appointment of an additional 
circuit judge for each of the nine circuits, and these judges 
were given the same power and jurisdiction as the United 
States circuit judges. The Circuit Court of Appeals con- 
sists of three judges taken from the judges competent to 
sit as judges in this court. These are the Chief Justice and 
Associate Justices of the Supreme Court assigned to each 
circuit, and the circuit judges within each circuit, and the 
several district judges within each circuit. This court tries 
only cases that are appealed to it from some other court. 
These cases are such as are brought to it by writ of error or 
appeal from the district and circuit courts, United States 
courts in the Indian Territory, and the supreme courts of 
the several Territories. 

These four distinct grades of courts involve only the 

three classes of judges — supreme, circuit, and district 

judges. 

14 



< 
202 THE GOVERNMENT OF THE UNITED STATES 

Topics. — Establishment of the Circuit Court of Appeals.— 
Purpose of the court. — Judges. — The cases that may be tried by 
this court. 

References. — Hinsdale, American Government, 303; Hart, 
Actual Government, 303; Macy, Our Government, 112. 

117. The Court of Claims. — It is a generally adopted 
principle that no sovereign government can be arraigned 
before any tribunal without its own consent. At the same 
time it is held by the more thoroughly civilized states that 
their "ordinary tribunals shall decide all causes in which 
the sovereign is a party with as much freedom as those be- 
tween private persons." It was in recognition of this prin- 
ciple that the makers of the Constitution in defining the 
scope of the judiciary powers of the United States provided 
that it should extend even "to controversies to which the 
United States shall be a party." It was not, however, until 
1855 that a court was created before which cases of this kind 
could be brought; but in that year the Court of Claims was 
organized under an act of Congress approved February 24. 
At first this court consisted of a chief justice and two judges; 
but an act of Congress approved March 3, 1863, increased 
the number, making the court consist of one chief justice 
and four judges. These are appointed, like the other 
Federal judges, by the President with the advice and consent 
of the Senate, and hold their office during good behavior. 
Before the establishment of this court, relief of the kind here 
provided for had to be sought directly from Congress; and 
for some time after the court was organized, its judgments 
were required to be transmitted to Congress to be finally 
acted upon. Persons having claims against the United 
States found in this procedure little abatement of those 
grievances they had previously suffered. The act of March 
3, 1863, enlarged somewhat the jurisdiction of the court and 
provided for an appeal to the Supreme Court. The ad- 



THE FEDERAL COURTS 203 

vantages of this appeal were, however, practically nullified 
by the proviso "that no money should be paid out of the 
treasury upon an adjudication of the court until after an ap- 
propriation therefor should be estimated for by the Secretary 
of the Treasury." This virtually subjected the decision of 
the court to an executive officer. The act of March 17, 1866, 
repealed this provision and gave the court effective juris- 
diction in general over claims against the Government and 
counter claims presented on the part of the Government. 
Two other courts have been established recently: 

1. A Court of Customs Appeals, created by the Tariff 
Act of 1910, consisting of a presiding judge and four associate 
judges appointed by the President, by and with the advice 
and consent of the Senate. This court has jurisdiction in all 
cases appealed from any Board of United States General 
Appraisers, no other court having jurisdiction in such cases. v 
It may review all decisions by a Board of General Appraisers 
in all cases as to the construction of the law and the facts 
respecting the classification of merchandise and the rates of 
duty imposed thereon, and all the appealable questions as to 
the jurisdiction of said board, and all appealable questions as 
to the laws and regulations governing the collection of the 
customs revenues. (Tariff Act of 1909, Section 29.) 

2. A Commerce Court created by an Act of Congress in 
June, 1910, to have jurisdiction over all cases for the enforce- 
ment of any order of the Interstate Commerce Commission, 
other than for the payment of money, and over cases brought 
to enjoin, annul, or suspend any order of that commission. 

Topics. — Purpose of Court of Claims. — Establishment of the 
court, 1855. — Number of judges at first and later. — Appointment 
and term. — Grievances to be set aside by the court. — Steps in the 
progress of the court toward independence. — Present jurisdiction. 

References. — Bryce, American Commonwealth, \, 239; Dawes 
How We Are Governed, 276-279; Hinsdale, American Government, 
304; Hart, Actual Government, 304. 



204 THE GOVERNMENT OF THE UNITED STATES 

118. Equity. — In framing a system of laws which are 
general in their application, it is not possible to make every 
law so perfect that no injustice will ever be done in ad- 
ministering it strictly. It was the original imperfection of 
the laws that gave rise to the ideas suggested by the term 
"equity" in connection with a system of laws. In theory, 
a case in equity originally arose when a subject, finding that 
the law as applied to him failed to render essential justice, 
appealed from the decision of the law to the conscience of 
the king who had made the law. The king, however, was 
not always in a position to deal in person with the case, and 
under such circumstances turned the whole matter over to 
his secretary, or chancellor. With this notion of the origin 
of equity in mind, one may see the force of Grotius's defini- 
tion that equity is the correction of that wherein the law, by 
reason of its generality, is deficient. When this is the case, 
and the person directly affected has suffered unjustly under 
the decision, he naturally looks for redress; and the justice 
which he seeks appears to be identical with the notion of 
equity. 

There exists no longer an appeal directly from the law 
to the lawmaker. All cases for the enforcement of rights or 
for the redress of wrongs are now presented to courts; some 
to courts of law, and others to courts of equity, or to law 
courts dealing with equity cases. A court of equity now 
differs from a court of law " mainly in the subject matters of 
which it takes cognizance and its mode of procedure and 
remedies." 

In some countries cases in equity and cases in law are 
tried in distinct classes of courts, while in other countries 
the two kinds of cases are brought before the same court. 
In England the practice of having separate courts for the 
two classes of cases has generally been maintained, and in 
the United States some of the States have had and still have 
separate courts for cases in equity; but in other States the 



THE FEDERAL COURTS 205 

same courts have jurisdiction in both law and equity. 
In the Federal Government there are no purely equity 
courts. 

Topics. — Origin of equity cases. — How presented now. — Court 
of equity and court of law. — As to the two classes of courts in 
England and the United States. 

Reference.— Miller, Lectures, 318, 319. 

119. Courts and Constitutionality of Laws. — Pronoun- 
cing on the constitutionality of laws is one of the impor- 
tant functions of the courts of the United States. To 
determine the constitutionality of a legislative act is to de- 
termine whether the Legislature, in passing it, exceeded the 
power granted to that body by the Constitution or the 
superior authority under which the Legislature exists. 
This function of the courts is made necessary by the fact 
that the Constitution cannot' be modified by Congress 01% 
by any established legislative body with regular, predeter- 
mined times for holding its sessions, and by the further fact 
that any other law with provisions not in harmony with the 
provisions of the Constitution is invalid. There is no law 
in England which holds the same position as the Constitu- 
tion of the United States or the statutes made under it. 
The English Constitution is a bundle of laws and traditions 
which at any time may be set aside, wholly or in part, by an 
act of Parliament. There is, therefore, no need in England 
of a court to perform functions like those performed by the 
United States Courts in pronouncing on the constitutionality 
or unconstitutionality of laws. The American court in 
performing these functions does not enter into a debate with 
the Legislature as to the constitutionality of a law. It 
hears a case under the law in question, brought before it in 
the regular order of procedure, and finds, in rendering 
judgment in the case, that the law under which the case is 
had is in harmony or not in harmony with the superior law. 



206 THE GOVERNMENT OF THE UNITED STATES 

If not in harmony, the alleged law, by that showing, is 
declared unconstitutional. 

During the Civil War Congress caused paper money to 
be issued and passed a law making it legal tender, or lawful 
money. This law was tested in the only way provided 
for testing the validity of a law. A case involving it was 
brought before a court. A man in New York went to pay 
his creditor a certain sum of money and offered it in United 
States notes, or greenbacks. The creditor claimed he should 
be paid in gold and refused to accept the paper money. 
Moreover, he brought suit before the district court to compel 
the debtor to pay in gold. The court decided that the paper 
currency was lawful money, and that all debts might be 
paid in it. The creditor then appealed to the circuit court, 
which rendered the same decision as the district court. 
Finally he appealed to the Supreme Court, where it was 
decided that the law under which the paper money was 
issued was constitutional and valid. He could not, there- 
fore, compel the debtor to pay in gold. The decision in this 
case showed that the Legal Tender Act was constitutional; 
and by this process it was shown that Congress had power 
to issue paper money. 

Topics. — When a law is unconstitutional. — Need of inquiring 
into this point in the United States. — Why such inquiries not neces- 
sary in England. — How a law is declared unconstitutional by an 
American court. — Decision on the Legal Tender Act. 

References. — Bryce, American Commonwealth, i, 373; Hinsdale, 
American Government, 318; Hart, Actual Government, 315-320; 
Lowell, Essays, 118-136; Miller, Lectures, 315-317. 

120. Independence of the Judges. — The founders of the 
Government were moved by many considerations to seek 
to give the Federal judges sufficient independence to enable 
them to render practical justice in all cases. They are 
appointed, and they hold office during good behavior, and 



THE FEDERAL COURTS 207 

they may not be removed except by impeachment. Con- 
viction on impeachment is the only method of determining 
that their good behavior has ceased. They are appointed 
by the President and confirmed by the Senate and are, 
therefore, not obliged to seek popular favor for the sake of 
being retained in office. Having been appointed for life, 
they need not court the favor of the President. Their 
salaries may not be diminished during their continuance in 
office, and thus it is not in the power of Congress to starve 
them into obedience to its will. But an opinion of the 
Supreme Court may be overruled, as already indicated, by 
an action of Congress and the President in increasing the 
number of judges. Any judge of any United States court, 
having attained the age of seventy years, and having been 
ten years in service, may resign and receive the same salary 
as that which he had while in the active performance of 
the duties of his official position. V 

Topics. — Independence strengthened by tenure of office. — Re- 
moval. — Judges not obliged to seek favor. — Congress not able to 
reduce the salaries of judges while in office. — Continuance of sala- 
ries of Federal judges. 

References. — Bryce, American Commonwealth, i, 239, 272, 305; 
Dawes, How We Are Governed, 259; Hinsdale, American Govern- 
ment, 295, 296; Miller, Lectures, 340-344. 

121. Law Applied by Federal Courts. — The Federal courts 
with respect to their jurisdiction differ from the State 
courts. Some features of this difference arise from the fact 
that the legal system of each State rests on the common 
law, while the Federal organization as such has no such 
basis. The common law of the States was for the most 
part derived from England, but it has undergone certain 
modifications in the several States through the influence of 
local circumstances and practices. The Federal courts, on 
the other hand, must find their law in the Constitution and 



203 THE GOVERNMENT OF THE UNITED STATES 

in written law enacted under the authority of the Constitu- 
tion. In every case where they would impose a penalty 
they must find the power to do it in the Constitution, in a 
law passed by Congress, or in a treaty. " But the Federal 
courts sitting in the several States, where their jurisdiction 
depends upon the character or residence of the parties who 
sue or are sued, administer for the most part the local law; 
and they take notice of the State common law, usages, and 
statutes, and apply them as the State courts would apply 
them in like controversies." 1 

Topics. — Difference between Federal and State courts. — Origin 
of the common law. — Law applied by Federal courts. — Local law 
sometimes administered by Federal courts. 

References. — Hart, Actual Government, 306-314; Cooley, 
Constitutional Law, 131. 

122. Impeachment. — The Government of the United 
States is so organized that every civil officer is subject not 
only to the restraints of the ordinary law courts, but also 
to legislative or executive control, and to the process of im- 
peachment. In all cases where executive authority has 
been conferred by statute, the jurisdiction of the officer 
abusing it may be taken away by the Legislature, or the 
officer may be removed by the Executive, or he may be im- 
peached under the provisions of the Constitution. A court, 
for example, established by statute may be abolished; the 
functions of an officer may be set aside or added to the 
duties of another officer; but the most practicable and 
effective restraints on civil officers are found in the provi- 
sions for impeachment, made by the Constitution. Under 
these provisions the House of Representatives has " the sole 
power of impeachment." The court before which the 
House brings the case is composed of the members of the 

1 Livingston's Lessee vs. Morse, 7 Pet., 469. 



THE FEDERAL COURTS 209 

Senate; for the Senate has "the sole power to try all im- 
peachments." " When the President of the United States is 
tried, the chief justice shall preside; and no person shall 
be convicted without the concurrence of two-thirds of the 
members present." "Judgment in cases of impeachment 
shall not extend further than removal from office, and dis- 
qualification to hold and enjoy any office of honor, trust, or 
profit under the United States; but the party convicted 
shall nevertheless be liable and subject to indictment, trial, 
judgment, and punishment according to law." In case of 
judgment rendered in an impeachment trial, the President 
has no power to grant reprieve or pardon. 

The Constitution does not classify or describe the offenses 
subjecting persons to impeachment. It provides, however, 
that " the President, Vice-President, and all civil officers of 
the United States, shall be removed from office on impeach- 
ment for, and conviction of, treason, bribery, and other 
high crimes and misdemeanors." It is asserted, because 
the Constitution leaves the party convicted, liable, and 
subject to indictment according to law, that, therefore, the 
power of impeachment reaches only such offenders as may 
be indicted and punished according to law. On the other 
hand, the phrase "high crimes and misdemeanors" is af- 
firmed to be intentionally vague in order that any officer 
may be reached by this process; and it appears to be settled 
that the President or any other officer may be impeached 
for any offense, and that it remains for the House to deter- 
mine in what cases it is expedient to institute impeachment 
proceedings. Some doubt has been expressed as to whether 
an officer may escape impeachment by resigning his office. 
In view of the fact that the judgment in an impeachment 
case may not extend further than removal from office, there 
appears nothing to be obtained by impeachment, provided 
the person it was proposed to impeach has resigned before 
the indictment is presented. But in the case of William 



210 THE GOVERNMENT OF THE UNITED STATES 

W. Belknap, who was Secretary of War under President 
Grant and who resigned a short time before the passage of 
the resolution to impeach him, it was voted by the Senate 
that he was subject to trial by impeachment although he 
had, by resigning, ceased to be Secretary of War. 1 

Topics. — Means of setting aside an officer. — Power of impeach- 
ment. — Court for impeachment cases. — In case of impeaching the 
President. — Judgment in cases of impeachment. — Cause for im- 
peachment. — Possibility of escape from impeachment by resigning 
office. — Belknap's case. 

References. — Goodnow, Comparative Administrative Law, ii, 
296-298; Hinsdale, American Government, 170-174; Hart, Actual 
Government, 304-306; Lalor, Cyclopaedia, ii, 480. 

123. Cases of Impeachment. — The first conspicuous 
case of impeachment was that of United States Senator 
William Blount, of Tennessee, in 1797. The charge against 
him was that he was engaged in a conspiracy to transfer 
New Orleans and the neighboring territory from Spain to 
Great Britain. He was to furnish a land force to cooperate 
with a British fleet in carrying out the plan. The evidence 
against him was a letter written by him to an Indian agent 
among the Cherokees. This letter, together with other 
papers, was laid before Congress by the President. As soon 
as the Senate learned that the House intended to impeach 
him, that body immediately placed him under bonds to 
appear for trial, and subsequently expelled him. The time 
for the trial was set for December, 1798; but Blount had 
in the meantime been elected to the Senate of Tennessee 
and did not appear. The most important point in the 
defense made by his counsel was that as senator he was not 
a " civil officer" liable to impeachment. This plea was sus- 
tained, and Blount was acquitted. The ground of acquittal 
was the Senate's want of jurisdiction. 

1 See page 213. 



THE FEDERAL COURTS 211 

Judge John Pickering, of the Federal district court for 
the district of New Hampshire, was impeached in 1803. 
The charge against him was that he had rendered decisions 
contrary to law, that he was habitually drunk, and that he 
had been guilty of profanity while on the bench. The 
counsel for the defense undertook to prove that the accused 
was insa'ne. To this the managers on the part of the House 
replied that the insanity, if shown, was a consequence of 
habitual drunkenness, and that to substantiate the fact of 
insanity was not to disprove the charge. The Senate, by 
a party vote, decided for conviction, and removed the 
accused from office. 

Samuel Chase, a justice of the Federal Supreme Court, 
was impeached in 1804. The charges against him covered 
a number of specifications: (1) That Justice Chase had re- 
fused to allow the counsel for John Fries to argue various 
points of law, and had announced his opinion as already 
formed, causing the counsel to abandon the case; (2) that 
in the trial of J. T. Callender for sedition, he had refused to 
excuse a juror who had already formed the opinion that the 
accused was guilty; (3) that he had refused to allow one of 
Callender 's witnesses to testify; (4) that he had so far in- 
terfered with Callender's counsel in the conduct of the case 
as to lead him to abandon it; (5) that, in a case which was 
not capital, he had arrested, instead of summoning, the ac- 
cused; (6) that he had refused to allow a case to be postponed 
when there appeared to be good ground for postponement; 
(7) that he had urged a grand jury in Delaware to find an 
indictment under the Sedition Law against its will; (8) that 
he had made " highly indecent and extrajudicial " reflections 
on the Government of the United States before a grand jury 
in Maryland. The last item refers to the judge's habit of 
delivering disquisitions in connection with his charges to the 
grand juries, which contained vigorous comments on current 
political events. There appeared to be a small majority in 



212 THE GOVERNMENT OF THE UNITED STATES 

favor o£ conviction on the third, fourth, and eighth charges; 
but, as the majority found him not guilty on all the other 
specifications, he was ultimately found to be not guilty on 
any, and continued to hold his position in the court during 
the rest of his life. 

Judge Peck, of the district court in Missouri, was im- 
peached by the House in 1830. The charge was arbitrary 
conduct in punishing for contempt of court an attorney 
who had published a severe criticism on his decision in a 
certain land case. The Senate was nearly equally divided. 
The vote in reaching a decision stood twenty-four to twenty- 
one in favor of the accused, and he was acquitted. 

Judge Humphreys, of the Federal district court in 
Tennessee, was impeached and tried in 1862. He had re- 
tained his seat on the bench while actually engaged in pro- 
moting the interests of the Rebellion. Impeachment was 
resorted to as a means of making the post held by Hum- 
phreys vacant, and the Senate voted unanimously for con- 
viction. 

Andrew Johnson, President of the United States, was 
impeached in 1867. He was charged with conduct involv- 
ing intention to violate the Tenure of Office Act; conspiracy 
to prevent E. M. Stanton from acting as Secretary of War; 
conspiracy to seize the War Department's property by force, 
and to control unlawfully the disbursement of the funds of 
that department. He was „ charged, moreover, with an 
attempt to induce General Emory, commanding the De- 
partment of Washington, to violate acts regulating the 
issuance of orders to the army; and with giving expression, 
with reference to Congress, to "utterances, declarations, 
threats, and harangues, highly censurable in any, and par- 
ticularly indecent and unbecoming in the chief magistrate 
of the United States, by means whereof said Andrew John- 
son has brought the high office of President into contempt, 
ridicule, and disgrace, to the great scandal of all good 



THE FEDERAL COURTS 213 

citizens"; also with denying that the legislation of Congress 
was binding upon him, and that Congress had any power 
to propose amendments to the Constitution. The charges 
were distributed under eleven heads. A vote was taken, 
May 16, on the eleventh article first, showing thirty-five 
for conviction and nineteen for acquittal. Ten days later 
a vote was taken on the second and third articles with the 
same result. The majority lacking one vote of the two- 
thirds requisite for conviction, the Chief Justice ordered a 
verdict of acquittal to be entered on the records. 

William W. Belknap, Secretary of War, was impeached 
in 1876. He was charged with receiving money for the 
appointment and retention in office of a post trader in 
Indian Territory. A few hours before the passage of the 
resolution to impeach him, he resigned; but it was decided 
by a vote of thirty-seven to twenty-nine that he was sub-, 
ject to trial by impeachment. This vote, however, in- 
dicated that the majority requisite for conviction could not 
be obtained; and after the presentation of the evidence and 
the arguments it was found that the vote on some of the 
articles stood thirty-five to twenty-five, on others thirty- 
six to twenty-five, and on still others thirty-seven to twenty- 
five. The requisite majority of two-thirds not being had on 
any article, the Senate rendered a verdict of acquittal. 

Topics. — Senator William Blount. — Judge John Pickering. — 
Samuel Chase. — Judge Peck. — Judge Humphreys. — Andrew John- 
son. — Secretary Belknap. 

References. — Goodnow, Comparative Administrative Latv, ii, 
298, 299; Hinsdale, American Government, 174, 175; Lalor, Cyclo- 
vadia, ii, 480. 

124. Court-Martial. — A court-martial is a tribunal for 
the trial of offenses arising in the military and naval service. 
It is created under the authority of Congress and is composed 
of a varying number of officers. In Great Britain there are 



214 THE GOVERNMENT OF THE UNITED STATES 

three grades of court-martial — general, district or garrison, 
and regimental, and the distinction of these grades is ob- 
served also in the United States. The general court-martial 
consists of any number of officers from five to thirteen. 
They may be appointed by the President or by any general 
officer commanding the army of the United States, a sepa- 
rate army, or a separate department. In the case of the gar- 
rison or regimental court-martial, the members of the court 
are appointed by the commanding officer. Before the sen- 
tence in any case tried by the court is carried out, it must 
be approved by the appointing officer. The jurisdiction of 
a court-martial is confined to persons duly enlisted or ap- 
pointed in the military or naval service; and the concur- 
rence of two-thirds of the members of the court is required 
to pronounce the sentence. 

Topics. — Description of a court-martial. — Grades in Great 
Britain and the United States. — Appointment. — Approval of sen- 
tence. — Jurisdiction of a court-martial. 

References. — Lalor, Cyclopaedia, i, 693; Cooley, Constitutional 
Law, 137, 138. 

FOR ADVANCED STUDY 

The Supreme Court. — Bryce, American Commonwealth, i, 
Chaps. XXII-XXIV; Carson, Supreme Court; Thayer, John Mar- 
shall, Chaps. III-V; Tucker, Constitution, i, Chap. XIII; Willough- 
by, Supreme Court; Goodnow, Comparative Administrative Law, ii, 
144-216; Cooley, Constitutional Law, Chap. VI; Cooley and others, 
Constitutional History, 29-52. 

John Marshall and His Interpretation of the Con= 
stitution. — Cooley and others, Constitutional History, Chap. II; 
Morse, Adams, 321, 322; Schouler, United States, i, Index; Magru- 
der, John Marshall, 82-201. 

Decisions of Chief Justice Taney and their Influence 
on the Constitutional Development of the United States. 
— Cooley and others, Constitutional History, 120-199; MacDonald, 



THE FEDERAL COURTS 215 

Select Documents, 295-298; Supreme Court Re-ports, 11 Peters-2 
Black. 

The Dred Scott Decision. — MacDonald, Select Documents, 
416-435; Nicolay and Hay, Abraham Lincoln, ii, Chap. IV; Rhodes, 
United States, ii, 249-271; H. von Hoist, United States, vi, Chap. 
I; Lincoln, Works, i, 228-235; Hart, Contemporaries, iv, 122-135; 
Lathrop, Seward, 181-186. 

Relation of the Courts to Legislation. — Thayer, Origin 
and Scope of the American Doctrine of Constitutional Law; Thayer, 
John Marshall, 61-78, 95-101, 104-110; Thayer, Cases on Constitu- 
tional Law, i, 9-47, 146-154; Coxe, Judicial Power and Uncon- 
stitutional Legislation; American Law Review, xix, 175-203 ; Cooley 
and others, Constitutional History, 9-14, 37-43, 76-80, 179-188, 
221-223, 226-233. 

The Decision in the Case of McCulIoch vs. the State 
of Maryland. — Channing and Hart, Guide, 358; Supreme Court 
Reports, 4 Wheaton, 316. ^ 

The Webster-Hayne Debate. — Channing and Hart, Guide, 
370. 

The Interpretation of the Constitution. — Bryce, Ameri- 
can Commonwealth, 366-375; Lalor, Cyclopcedia, i, 610, 611; Chan- 
ning and Hart, Guide, 326-32S. 

The Dartmouth College Case. — Supreme Court Reports, 4 
Wheaton, 518. 

Daniel Webster's Interpretation of the Constitution. 
—Webster's Works. 



CHAPTER VIII 

RIGHTS AND PRIVILEGES OF CITIZENS 

125. The Historical Basis of Political Liberty. — The 

common, or so-called unwritten, law of England was a sig- 
nificant part of the heritage of the United States. It in- 
volved the rights that had been specifically set forth "in 
certain historical documents, which in both England and 
America, had been looked upon and revered as the charters 
of liberty." 1 The most important of these documents are 
Magna Charta, the Petition of Right, the Habeas Corpus 
Act, and the Bill of Rights. They represent stages in the 
growth of individual liberty, and together constitute the 
basis of many of the rights enjoyed by citizens of the United 
States. They were issued to redress grievances, or to fur- 
nish guarantees for the recognition of the rights of the people 
in the future. 

In the thirteenth century the barons of England, in 
order to be able to force the king to restore their ancient 
rights, made common cause with the people. As a result of 
the conflict that ensued, the Great Charter was granted in 
1215. With respect to the later liberties of the English 
people, whether in England or in any other part of the world, 
the most important provision of that charter was the fol- 
lowing: "No freeman shall be taken, or imprisoned, or be 
disseized of his freehold or liberties or free customs, or be 
outlawed, or exiled, or any otherwise destroyed; nor will 

1 Cooley, Constitutional Law, 6. 
216 



RIGHTS AND PRIVILEGES OP CITIZENS 217 

we pass upon him nor condemn him but by a lawful judg- 
ment of his peers, or by the law of the land; we will sell to 
no man, we will not deny or defer to any man, either right 
or justice." This provision confirmed ancient liberties and 
guaranteed personal security for the future. The common 
man was protected in the possession of the property espe- 
cially necessary for his economical welfare: "even a villain 
or rustic should not by any fine be bereaved of his carts, 
ploughs, and implements of husbandry." The constitutional 
principle "that no taxes shall be laid except by consent of 
the persons taxed, expressed through their representatives," 
was established by the provision that " no scutage 1 or aid 
shall be imposed in our kingdom unless by the General 
Council of our Kingdom." 

The Petition of Right recited and reaffirmed the prin- 
ciples that had been established in Magna Charta. It is a 
statute passed in 1627, in the early part of the reign of 
Charles I. Its aim, like that of Magna Charta, was to se- 
cure the personal and civil liberties of the people against the 
encroachments of the king. It proposed not to create new 
rights, but to reestablish and defend those which English 
subjects had previously enjoyed. It prohibited unlawful 
taxes and assessments, forced loans, illegal arrests and im- 
prisonments, the quartering of soldiers on private citizens, 
and a resort to martial law in civil cases. This petition, 
having been voted by Parliament and approved by the king, 
strengthened the foundation of English liberty that had 
been laid by the Great Charter. It provided against illegal 
arrests and imprisonments; but in order to make effective 
these provisions, there was needed a clear and definitely 
established procedure of relief. This was furnished by 
the Habeas Corpus Act, passed in 1679, in the reign of 
Charles II. 

1 Shield money (Latin, scutum, a shield) ; a tax paid in lieu of mili- 
tary service. 
15 



218 THE GOVERNMENT OF THE UNITED STATES 

The Habeas Corpus Act requires the body of a person 
restrained of liberty to be brought before the judge or into 
court, that the lawfulness of the restraint may be investi- 
gated and determined. Through the procedure furnished 
by this act, the guarantees of personal liberty provided in 
the ancient charters became effective, and another addition 
was made to the structure of constitutional liberty which 
the English people were building. 

Liberty was, however, not won by a single battle. The 
appearance of arbitrary kings from time to time tended to 
set aside the advantages which had been gained by the 
people. The last effort to establish the absolute power of 
the Crown was made by the Stuart kings. Their overthrow 
offered the opportunity for a final reestablishment of the 
rights and liberties of the people. This was done through 
the Declaration of Rights, which, as the Bill of Rights, be- 
came the law of the land in the early part of the reign of 
William and Mary. This statute declared the right of the 
subject to petition the king. It established freedom of 
election of members of Parliament, and freedom of speech in 
Parliament. It made illegal the maintenance of standing 
armies without the consent of Parliament, and affirmed that 
the king had no power of suspending, or dispensing with, 
laws. It provided that excessive bail should not be re- 
quired, nor excessive fines imposed, nor cruel or unusual 
punishment inflicted. It formulated many of the most 
vital political principles that underlie modern constitu- 
tional government. 

Topics.- — Common law and rights. — Important documents in 
the evolution of rights of Englishmen. — Purpose of these documents.' 
— The Great Charter. — Petition of Right. — Habeas Corpus Act. — 
Bill of Rights. 

References. — Cooley, Constitutional Law, 6-8; Fiske, Civil 
Government, 195-200; Hart, Actual Government, 21-23, 39-41 ; Lalor, 
Cyclopaedia, ii, 800; Lowell, Essays, 60-117. 



RIGHTS AND PRIVILEGES OP CITIZENS 219 

126. The Bill of Rights and the Constitution of the 
United States. — The Constitution, as submitted to the 
States, provided that the privilege of the writ of habeas 
corpus should not be suspended unless, when, in case of 
revolution or invasion, the public safety might require it. 
It provided also that no bill of attainder 1 or ex post facto 
law 2 should be passed, and that the trial of all crimes, ex- 
cept in cases of impeachment, should be by jury. These 
restrictions, however, were not thought to be sufficiently 
extensive. The people still feared oppression by the Govern- 
ment; and, when they found that the Constitution con-^ 
tained no bill of rights, they refused to adopt it until per- 
suaded that an amendment would be made containing 
the desired provision. They held that a recognition of the 
fundamental rights that had been won by the people in the 
English struggle for liberty was essential to good govern- 
ment. They wished the Constitution to contain a bill of* 
rights; and, in obedience to this wish, the early amendments 
were adopted. The first ten amendments have the character 
of a bill of rights, and several of their provisions indicate 
a direct descent from the English law. They affirm the 
right of the people to petition the Government for a redress 
of grievances; that "no soldier shall in time of peace be 
quartered in any house without the consent of the owner, 
nor in time of war, but in a manner to be prescribed by 
law," and that "excessive bail shall not be required, nor 
excessive fines imposed, nor cruel or unusual punishment 
inflicted." The limitations stated in these provisions refer 
only to the action of the Federal Government. The clause 
affirming that no bill of attainder or ex post facto law shall 
be passed restricts simply the powers of the Congress. 
Referring to Marshall's decision, Cooley formulates briefly 
the accepted doctrine on this subject, as follows: "The 
. \ 

1 See page 220. 2 See page 221. 



220 THE GOVERNMENT OF THE UNITED STATES 

restrictions imposed upon government by the Constitution 
and its amendments are to be understood as restrictions 
only upon the government of the Union, except where the 
States are expressly mentioned.' ' 1 

A bill of attainder, which both Congress and the State 
legislatures are expressly forbidden to pass, is a law framed 
and enacted by a legislature declaring a person by name, 
or declaring a class of persons, to be guilty of crime, and 
ordering him or them to be capitally punished. When the 
punishment mentioned in the law is of a degree less than 
death, the law is technically known as a bill of pains and 
penalties. In a decision of the Supreme Court, delivered by 
Mr. Justice Field, is found the following definition: "A bill 
of attainder is a legislative act which inflicts punishments 
without a judicial trial. If the punishment be less than 
death, the act is termed a bill of pains and penalties. Within 
the meaning of the Constitution, bills of attainder include 
bills of pains and penalties. In these cases the legislative 
body, in addition to its legitimate functions, exercises the 
powers and office of judge: it assumes, in the language of 
the text-books, judicial magistracy; it pronounces upon the 
guilt of the party, without any of the forms or safeguards 
of trial; it determines the sufficiency of the proofs produced, 
whether conformable to the rules of evidence or otherwise; 
and it fixes the degree of punishment in accordance with its 
own notions of the enormity of the offense. These bills 
are generally directed against individuals by name; but 
they may be directed against a whole class." 2 Condem- 
nations of this kind may represent an extreme of tyranny; 
for "no trial is necessary, no legal evidence, no notice to 
the accused, no opportunity for defense, no examination of 
witnesses, even no crime." 

1 Cooley, Constitutional Law, 19. 

2 Cummings vs. the State of Missouri, 4 Wallace, 277. 



RIGHTS AND PRIVILEGES OF CITIZENS 221 

It is not difficult to see how objections to ex post facto 
laws might find expression in a constitutional prohibition. 
This is a technical term which applies only within the field 
of criminal law. Ex post facto laws are only such laws " as 
declare an act criminal, and provide for its punishment, 
which, at the time of its commission, was not a crime; or 
such as change the punishment of a known crime in any 
other manner than by mitigating it, and are to operate 
upon past as well as future offenses; or such as alter the 
rules of evidence or other procedure, so that conviction 
shall be made easier, and are to apply as well to those who 
committed the act prior, as to those who committed it sub- 
sequently, to the passage of the statute." 

Topics. — Restrictions in Constitution as submitted. — Popular 
view as to a bill of rights. — Nature of first ten amendments. — Bill 
of attainder. — Bill of pains and penalties. — Ex post facto laws. 

References. — Bryce, American Commonwealth, i, 28; Cooley, 
Constitutional Law, 17-19; Hinsdale, American Government, 109; 
Lalor, Cyclopcedia, i, 284; Lowell, Essays, 83. 

127. Bill of Rights in State Constitutions. — The promi- 
nence given to the "Rights of Man" in the discussions in 
France during the French Revolution called attention to the 
principles of the Bill of Rights; and, after this, constitu- 
tion makers gave larger place than previously to statements 
of these general principles. The Bill of Rights has, there- 
fore, become a conspicuous feature of recent State Constitu- 
tions and merits a careful consideration, since it sets forth 
certain principles that are fundamental in the American 
Government. The following are the essential propositions 
contained in the Bill of Rights found in the several State 
constitutions: 

1. All men are by nature equally free and independent, 
and have certain inherent rights; among these are life, 
liberty, and the pursuit of happiness. 



222 THE GOVERNMENT OF THE UNITED STATES 

2. All political power is inherent in the people. Govern- 
ment is instituted for the protection, security, and benefit 
of the people. 

3. Every person has a right to worship God according to 
the dictates of his own conscience; and no person can of 
right be compelled to attend, erect, or support, against his 
will, any place of religious worship, or pay any tithes, taxes, 
or other rates for the support of any minister of the gospel 
or teacher of religion. 

4. No money shall be drawn from the public treasury 
for the benefit of religious societies or theological or religious 
seminaries. 

5. The civil and political rights, privileges, and capacities 
of no individual shall be diminished or enlarged on account 
of his opinion or belief concerning matters of religion. 

6. Every person may speak, write, and publish his sen- 
timents on all subjects, being responsible for the abuse of 
that right. No law shall be passed to restrain or abridge 
the liberty of speech or of the press. In all prosecutions or 
indictments for libel, the truth may be given in evidence to 
the jury; and if it appear to the jury that the matter charged 
as libelous was true, and was published with good motives 
and justifiable ends, the party shall be acquitted. 

7. The right of the people to be secure in their persons, 
houses, papers, and effects against unreasonable seizures and 
searches shall not be violated; and no warrant shall be 
issued except on probable cause, supported by oath or 
affirmation, particularly describing the place to be searched, 
and the persons and things to be seized. 

8. The right of trial by jury shall remain inviolate. 

9. In all criminal prosecutions, and in cases involving 
the life or liberty of the individual, the accused shall have 
right to a speedy and public trial by an impartial jury; to 
be informed of the accusation against him, and to have a 
copy of the same when demanded; to be confronted with the 



RIGHTS AND PRIVILEGES OF CITIZENS 223 

witnesses against him, to have compulsory process 1 for his 
own witnesses, and to have the assistance of counsel. 

10. All offenses that are less than felony, and in which 
the punishment does not exceed a fine of $100, or imprison- 
ment for thirty days, shall be tried summarily before a jus- 
tice of the peace, or other officer authorized by law, on 
information under oath, without indictment or the inter- 
vention of a grand jury, saving to the defendant the right 
of appeal; and no person shall be held to answer for any 
higher criminal offense, unless on presentation or indictment 
by a grand jury, except in cases arising in the army or navy, 
or in the militia when in actual service, in time of war or 
public danger. 

11. Excessive bail shall not be required, nor shall ex- 
cessive fines be imposed, nor cruel and unusual punishments 
inflicted. 

12. No bill of attainder, ex post facto law, or law impair- 
ing the obligation of contracts shall be passed. 

13. The writ of habeas corpus shall not be suspended or 
refused when application is made as required by law, unless, 
in case of rebellion or invasion, the public safety may re- 
quire it. 

14. The military shall be subordinate to the civil power. 
No standing army shall be kept up by the State in time of 
peace; and in time of war no appropriation for a standing 
army shall be for a longer time than two years. 

15. No soldier shall, in time of peace, be quartered in any 
house without the consent of the owner, nor in time of war 
except in the manner prescribed by law. 

16. Treason against the State shall consist only in levy- 
ing war against it, adhering to its enemies, or giving them 

1 A process, in law, is the summons, mandate, or command by which 
a defendant or a thing is brought before a court for litigation; in other 
words, it is the means employed in compelling the defendant to appear 
in court. 



224 THE GOVERNMENT OF THE UNITED STATES 

aid and comfort. No person shall be convicted of treason 
unless on the evidence of two witnesses of the same overt 
act, or confession in open court. 

17. No person shall be imprisoned for debt in any civil 
action on mesne or final process, 1 unless in case of fraud; 
and no person shall be imprisoned for a militia fine in time 
of peace. 

18. The people have the right freely to assemble to- 
gether to counsel for the common good, to make known 
their opinions to their representatives, and to petition for a 
redress of grievances. 

19. No person shall, after acquittal, be tried for the same 
offense. All persons shall, before conviction, be bailable 
by sufficient securities, except for capital offenses where the 
proof is evident or the presumption great. 

20. Private property shall not be taken for public use 
without just compensation first being made or secured, to 
be paid to the owner thereof as soon as the damages shall 
be assessed by a jury, who shall not take into consideration 
any advantages that may result to said owner on account 
of the improvement for which it is taken. 

In some of the later constitutions there is observed a 
tendency to take for granted or to lay aside these general 
maxims and to introduce specific declarations. 

Topics. — Bill of Rights during French Revolution. — Bill of 
Rights in State constitutions. — Tendency in later constitutions. 

References. — Bryce, American Commonwealth, i, 438-442, 
711; Hinsdale, American Government, 109, 376; Macy, Our Govern- 
ment, 30. 

128. Suspension of the Writ of Habeas Corpus. — To sus- 
pend the writ of habeas corpus moans to make such pro- 

1 A mesne process is any process in a suit which intervenes between the 
original process of writ and the final execution; while the final process is 
the writ of execution used to carry the judgment of the court into effect. 



RIGHTS AND PRIVILEGES OF CITIZENS 225 

vision that persons arrested will not have the right to an 
immediate hearing before a court, thus making it possible 
for persons to be arrested and imprisoned without regular 
process of law. The power to suspend the writ of habeas 
corpus, according to the decisions of the Supreme Court, is 
a legislative power; and the President cannot exercise it 
except as authorized by law. 1 But practice has not al- 
ways followed this doctrine. In 1861, President Lincoln 
issued an order to Lieutenant General Scott suspending the 
writ. This was two years before Congress passed its first 
act for the same purpose. The President's action was 
thought to be justified by the following opinion of Attorney- 
General Bates: "If by the phrase, 'the suspension of the 
writ of habeas corpus ,' we must understand a repeal of all 
power to issue the writ, then I freely admit that none but 
Congress can do it. But if we are at liberty to understand 
the phrase to mean that in case of a great and dangerous* 
rebellion like the present, the public safety requires the 
arrest and confinement of persons implicated in that re- 
bellion, I as freely declare the opinion that the President has 
lawful power to suspend the privilege of persons arrested 
under such circumstances; for he is specially charged by 
the Constitution with the public safety, and he is the sole 
judge of the emergency which requires his prompt action." 
The Constitution does not formally adopt the writ of 
habeas corpus, but presumes it to be authoritative in the 
United States as a part of the common-law inheritance from 
England. This presumption is expressed in the provision 
that " the privilege of the writ of habeas corpus shall not be 
suspended, unless when in cases of rebellion or invasion, the 
public safety may require it." The writ of habeas corpus 
exists as an element of State law either by informal recog- 
nition or by a specific act of the Legislature; and the State 

1 Cooley, Constitutional Law, 289, 



226 THE GOVERNMENT OF THE UNITED STATES 

constitutions make essentially the same reference to its 
suspension as the Federal Constitution. The purpose of 
the writ is to make such provisions that persons arrested 
may not, for any considerable period of time, be deprived of 
their liberty unless the ground of their detention is such as 
to convince a court that under the law they should be im- 
prisoned. The writ may, moreover, be 'appealed to to set 
free any person illegally deprived of his liberty, or to 
set free a person confined under a false charge of insanity, 
or by parents to get control of their children unlawfully 
detained by others. 

By proceeding with military force against a part of the 
nation in rebellion, the President, as commander in chief, 
brings about a state of things in which the writ of habeas 
corpus is practically suspended. "During the administra- 
tion of President Washington, the military authorities en- 
gaged in suppressing the Pennsylvania 'Whisky Insurrec- 
tion' of 1794 and 1795, disregarded the writs which were 
issued by the courts for the release of the prisoners who had 
been captured as insurgents. General Wilkinson, under the 
authority of President Jefferson, during the Burr Conspiracy 
of 1806, suspended the -privilege of this writ, as against the 
superior court of New Orleans." The declaration of martial 
law has the effect of suspending the writ of habeas corpus. 

Topics. — Effect of suspending writ of habeas corpus. — Power 
to suspend the writ. — Lincoln's action. — Attorney-General's opin- 
ion. — Habeas corpus and the Constitution. — Purpose of the writ. — 
Suspension in case of rebellion. 

References. — Bryce, American Commonwealth, i, 55; Fiske, 
Civil Government, 257; Hinsdale, American Government, 237-239; 
Hart, Actual Government, 27; Lalor, Cyclopaedia, ii, 432; Miller, 
Lectures, 349, 487. 

129. The Rights of the Individual and the Community. — 

That the community also has rights is a fact that is not 



RIGHTS AND PRIVILEGES OF CITIZENS 227 

always kept distinctly in mind. The struggle of the in- 
dividual citizen to secure a recognition of his- rights has 
been so long and absorbing that now, when his purpose is 
attained, he appears sometimes unmindful of any pre- 
tensions other than his own. The laws of the United States, 
however, in many places proclaim the superior rights of the 
community. The individual citizen has attained the right 
to worship in accordance with the dictates of his conscience; 
but when in the enjoyment of this liberty he institutes 
practices that seem to the State subversive of the best 
interests of the community, the rights of the community are 
asserted to the limitation of the freedom of the individual. 
If a community is convinced that, in order to attain its 
highest well-being, polygamy should not be practiced, it 
bases on this fact its right to overrule and set aside this 
practice or any other practice in conflict with this convic- 
tion, even though such practice has the sanction of religiou W 
ideas. Furthermore, private property and the right of the 
individual citizen to hold it are guarded and hedged about 
by the organized forces of the community as if their main- 
tenance were the one paramount object of the State; yet, 
whenever any private property is demanded for the use of 
the public, the individual citizen's rights yield before the 
rights of the community. This is seen in the application of 
the law of eminent domain. 

Topics. — Rights of the community. — Danger of neglecting 
community rights. — Limitation of rights claimed under religious 
liberty. — Right of eminent domain. 

References. — Dawes, How We Are Governed, 208-296; Ford, 
American Citizen's Manual, Part II, 1-3; Hart, Actual Govern- 
ment, 19-26; Lalor, Cyclopaedia, ii, 141; iii, 162; Lowell, Essays, 
60-117. 

130. Eminent Domain. — The right of the Government 
to take property for public use on making compensation 



228 THE GOVERNMENT OF THE UNITED STATES 

for it at a valuation fixed by agents of the Government is 
called the right of eminent domain. Under those govern- 
ments where in theory the property is held by grant from 
the sovereign, the exercise of the right of eminent domain 
may be regarded as the act of taking back the property 
originally granted. It is presumed under this theory that 
the sovereign, in making the grant, necessarily by reason of 
his sovereignty reserved the capacity to revoke it. Essen- 
tially the same result is reached under a republican form of 
government, but the theory of the operation is different. 
The republic proclaims a public need and benefit, and as- 
serts the superior right of the community. The Constitu- 
tion presumes this right to exist in a sovereign government, 
and subjects it to regulation in the United States by declar- 
ing that private property shall not be taken for public use 
without just compensation. To take land or other property 
under this right is to condemn it. This right is most fre- 
quently exercised in taking lands for roads, railroads, canals, 
or parks; but other forms of property may be reached by it 
when it appears that they are needed for some public use. 

The power to take property under this right may be said 
to belong primarily to the States, since they "are expected 
to make provision for the conveniences and necessities of 
public travel, and for the other wants of the general public, 
and of the State itself"; yet for all national purposes the 
power may be exercised by the Government of the United 
States. In the relation of the Territory to the right of emi- 
nent domain, we observe a distinction between the State 
and the Territory, since in the Territory the right of eminent 
domain belongs to the Federal Government. When, how- 
ever, the Territory becomes a State, the right passes with 
all its incidents to the new organization — that is, to the 
State. 

The exercise of this right by the Government is distin- 
guished from taxation in that taxes are contributions which 



RIGHTS AND PRIVILEGES OF CITIZENS 229 

the citizen makes toward the maintenance of the Govern- 
ment under a general law; while property taken under the 
right of eminent domain is required of particular persons, 
and similar requirements are not necessarily made from 
other members of the community. Because it is a special 
demand in no way equalized with the demands made on 
other citizens, justice requires that compensation should be 
made for property thus appropriated. 

Some of the purposes for which the Government causes 
private property under this right to be appropriated are 
easily recognizable as public. Among these are the con- 
struction of fortresses, lighthouses, piers, docks, military 
roads, and public buildings. But it is not easy to distin- 
guish clearly between those purposes which are public and 
those which are not public. The decision of this question 
in every case rests with the Government. The Govern- . 
ment voices the needs of the nation or the community and 
decides with reference to any particular piece of property 
whether it is or is not required to satisfy those needs. The 
property that is thus subject to condemnation and appro- 
priation is not merely land and other forms of real estate, 
but any kind of property protected by the laws of the United 
States. 

In proceeding under this power to take possession of 
property required for public purposes, the Government 
usually attempts to make an agreement with the owner as 
to the compensation to be paid, and, failing in this, resorts 
to the method prescribed by law; and to this end provides 
an impartial tribunal to assess the amount of damage that 
will result to the owner in being deprived of the property in 
question. The property appropriated may be used im- 
mediately by the State, or a corporation created by law to 
render some public service may be empowered to appropriate 
it for the specified purpose. Thus a railroad company, to 
cite a single familiar illustration, organized to render the 



230 THE GOVERNMENT OP THE UNITED STATES 

services of a common carrier, may be authorized by the 
Legislature to condemn land to be used by it for its roads. 

Topics. — Define the right of eminent domain. — Theory of this 
right in the Republic. — Attitude of the Constitution toward this 
right. — For what purposes most frequently exercised. — How exer- 
cised in a Territory. — Compared with taxation. — Decision as to 
when it may be exercised. — Method of proceeding in the exercise 
of this right. 

References. — Fiske, Civil Government, 4; Ford, American 
Citizen's Manual, Part II, 14; Cooley, Constitutional Law, 331-342. 

131. The Right to Assemble and the Right to Petition. — 

Popular government presumes that the people shall have 
the right to assemble and the right to petition the public 
authorities for a redress of grievances. These rights were 
secured to the people of the United States by the first amend- 
ment to the Constitution. The term "people," when it is 
said that the people elect the officers whose election is pro- 
vided for by law, embraces only those persons who have the 
privilege of voting, or, in other words, those who enjoy 
political rights. But as used here, it comprehends all 
members of the nation, those who enjoy only civil rights as 
well as those who enjoy both civil and political rights. 
Whether voters or not, they may assemble and may petition 
the Government for such changes in legislation or adminis- 
tration as may seem to them desirable. The right to as- 
semble is understood to carry with it the right to discuss 
questions of common or public interest. They may be re- 
ligious questions, political questions, questions of moral or 
industrial reforms, or any other matters relating to the 
organization or welfare of society. The conclusions reached 
by such assemblies may relate simply to the affairs of private 
associations with which the Government is not immediately 
concerned; or they may deal with subjects in which the 
legislative or executive authority is vitally interested. In 



RIGHTS AND PRIVILEGES OF CITIZENS 231 

the latter case they may exert more or less influence in 
modifying the laws or changing the administrative policy. 
Important social or political reforms have sometimes their 
beginnings in the deliberations of private associations, so 
that in guaranteeing the right to assemble, the Constitution 
has established conditions favorable to the moral and legal 
progress of society. When, however, assemblies assume 
the character of riotous meetings tending to impede the 
operation of the normal and beneficent forces of social 
growth, and thus to check the progress of the nation or of 
any part of it, they have forfeited their claim to govern- 
mental protection; for their conduct and influence are in- 
consistent with the purposes of government. 

Topics. — The right to assemble. — The right to petition. — Ad- 
vantages and limitations of these rights. 

References. — Dawes, How We Are Governed, 309, 310; Ford, 
American Citizen's Manual, Part II, 6; Hinsdale, American Govern- 
ment, 352; Lalor, Cyclopaedia, iii, 169. 

132. Freedom of Speech and of the Press. — The right to 
assemble is not of great importance unless it is accompanied 
by the right of free speech and of free publication. Free- 
dom of speech and of the press, as it exists in the United 
States, was established through the common law. The in- 
habitants of the colonies enjoyed this freedom before the 
formation of the Federal Government. It is defined as 
"the liberty to utter and publish whatever the citizen may 
choose, and to be protected against legal censure and punish- 
ment in so doing, provided the publication is not so far 
injurious to public morals or to private reputation as to be 
condemned by the common-law standards, by which de- 
famatory publications were judged when this freedom was 
thus made a constitutional right. And freedom of speech 
corresponds to this in the protection it gives to oral publica- 
tions." The Constitution assumes the existence of this 



v 



232 THE GOVERNMENT OF THE UNITED STATES 

liberty and provides that Congress shall make no law 
abridging the freedom of speech or of the press. Therefore, 
the inhabitants of the United States under the Constitution 
enjoy, in this respect, whatever measure of liberty was 
enjoyed by the inhabitants of the colonies before the adop- 
tion of the Constitution. In order to discover the extent 
and nature of this liberty, one must examine the provisions 
of the common law concerning it. There are, however, 
certain cases of privilege to which this law does not apply. 
Under the law there are two classes of cases, or two classes 
of utterances that are privileged. The privilege in one 
class of cases is absolute; that is to say, such cases are com- 
pletely exempt from the restrictions of the law regulating 
freedom of speech and of the press. The cases of absolute 
privilege are: 

1. Utterances by members of Congress in any speech or 
debate in either house. 

2. The testimony given by a witness in the course of 
judicial proceedings. 

3. Statements by a juror in the jury room concerning 
the witnesses or the parties in the case. 

4. Complaints of criminal actions made in order to bring 
the supposed criminal to trial, as also the preliminary in- 
formation for the instruction of the officers of the court. 

5. The pleadings and other papers prepared for the trial, 
in so far as their statements relate to the matter in contro- 
versy. 

6. The official utterances of the President of the United 
States, the governors of the States, the judges of the courts, 
and all officers performing judicial functions. 

7. The remarks of persons presenting a case before a 
court, when confined to the matter of the case in hand and 
not uttered for the purpose of detraction and abuse. 

8. Truthful reports of proceedings in legislative bodies, 
in their committees, and in the courts, provided always that 



RIGHTS AND PRIVILEGES OF CITIZENS 233 

these reports are confined to the proceedings and do not 
introduce defamatory statements not contained in the pro- 
ceedings themselves. 

In the other class of cases of privilege, the exemption 
from the restraints of the law is conditional and is dependent 
on motive. The most conspicuous of such cases are: 

1. Criticism of officers of the Government and of candi- 
dates for office. The reason of this exemption lies in the fact 
that the citizens should know the qualities of the officers 
in charge of their affairs and the qualities of those who are 
presented as candidates for office. This criticism is legiti- 
mate and privileged, provided the critic speaks of what he 
knows or believes, has only the public interest in view, and 
speaks without malice. 

2. Discussion of public affairs. Popular government 
is in a large measure guided by public discussion, and in 
order that this discussion may be as completely impartial as 
possible and free from the directing hand of official author- 
ity, it is exempted from legal restraints as long as it is con- 
ducted with moderation and with a view to the public wel- 
fare. From fear lest there should be an appearance of 
official dictation, the liberty which it was proposed to con- 
firm in this matter has sometimes been allowed to degen- 
erate into an unwholesome license. 

3. Reviews of books, magazines, and pamphlets. It is 
presumed that if publications of this kind are such as ought 
to be issued, no injury will be done by presenting their dis- 
tinguishing characteristics; and if they are not such as ought 
to be issued, some good may be done by hastening their ex- 
termination. 

The restriction in cases where there is a conditional ex- 
emption is applied through the courts. If a person thinks 
himself injured by a given publication, he may bring suit 
for damages ; but no damages will be awarded if it is shown 
in the defense that only the truth about the plaintiff has 
16 



234 THE GOVERNMENT OP THE UNITED STATES 

been published. When, however, a criminal prosecution 
is instituted on the charge that the specified publication is 
injurious to society, proof that only the truth has been 
published is not an adequate defense; for although a pub- 
lisher may have confined himself to well-ascertained facts 
about a certain person or certain persons, yet these facts 
may be of such a character as to make their publication a 
crime against society. The injury complained of in this 
instance is an injury to the public; "and when private 
reputation and conduct are needlessly dragged before the 
public to the disturbance of the peace of society, the public 
injury may be as great when only the truth is spoken, as 
when the publication is wholly untrue. The truth, there- 
fore, is not in all cases a defense to a prosecution for criminal 
libel; but the publisher, in addition to the truth, must show 
that he made the publication with good motives and for 
justifiable ends." 1 

Topics. — Freedom of speech defined. — Existence of this free- 
dom assumed by the Constitution. — Determined by the common 
law. — Cases of absolute privilege. — Cases where exemption from 
restraint depends on motive. — Redress through the courts. 

References. — Bryce, American Commonwealth, ii, 350; Dawes, 
How We Are Governed, 306; Ford, American Citizen's Manual, 
Part II, 8; Hinsdale, American Government, 352; Hart, Actual 
Government, 28; Lalor, Cyclopaedia, iii, 319. 

133. The Right to Vote. — The right to vote is the right 
to participate in the political affairs of the nation. This 
right is created by law. Of late it has been frequently 
affirmed that it is a natural right. A person who holds this 
opinion, however, finds that it is the positive law of the 
nation to which he belongs that includes him among those 
on whom it confers this power, or excludes him from them. 

1 Cooley, Constitutional Law, 280. 



RIGHTS AND PRIVILEGES OF CITIZENS 235 

In this view of the case the doctrine that the right to vote 
is a natural right does not appear to have great practical 
significance. As a matter of fact, wherever this power is 
held, it exists under a definite legal provision which holds no 
necessary relation to the alleged natural right. The right 
to vote is conferred not primarily for the benefit of the in- 
dividual citizen. The benefit that comes to him comes 
largely through the improvement of the community in which 
he exercises this right. If, therefore, there are certain per- 
sons whose influence, if they were endowed with this power, 
would be detrimental to the welfare of society, the state 
that is wisely conducted will, if possible, so frame the law 
of suffrage as to exclude them from the enjoyment of this 
privilege. 

In the United States it is the several States that deter- 
mine who shall vote. In this matter they act without any 
restraint or limitation, except that imposed by the fifteenth 
amendment to the national Constitution, which prevents 
them from denying or abridging the right of any citizen of 
the United States to vote on "account of race, color, or 
previous condition of servitude." In Federal as well as in 
State elections only those persons are entitled to vote to 
whom the right has been given by a State law, and this law 
is usually the State constitution. The specific regulations 
under which this right is exercised are prescribed by the 
legislature of the State. Important among such regula- 
tions is that which requires a registration of all voters be- 
fore the day of election. The various measures of detail 
respecting the methods of voting, the form of the ballot, 
notices of the time of the election, and the manner of in- 
dicating the will of the voter on the ballot also are prescribed 
by the legislature. 

In conferring the right to vote, the State legislative 
poAver acts arbitrarily. It presumes no natural right to 
vote. It recognizes only such restrictions as are imposed 



236 THE GOVERNMENT OF THE UNITED STATES 

by the Federal Constitution. In the beginning of the cen- 
tury it was provided in some of the States of the South 
that the voter must have a certain educational qualification. 
This would exclude both the ignorant negro and the ignorant 
white man. In this the law was general. Then an excep- 
tion was made of all those persons whose grandfathers, or 
whose ancestors before a certain date, had had the right to 
vote. This exception also was general; but under it the 
ignorant white man and not the ignorant negro might vote. 

Topics. — Right to vote created by law. — The view that it is a 
'natural" right. — Aim in conferring the right. — Determination of 
the right in the United States. — The fifteenth amendment. — Regu- 
lations for voters. — Restrictions in the South. 

References. — Bryce, American Commonwealth, i, 419, 484; 
Dawes, Hoiv We Are Governed, 324 ; Hart, Practical Essays, 20-57 ; 
Miller, Lectures, 661. 

134. Equality. — In some countries it has been thought 
expedient to have different laws for the different social 
classes, but in the United States all laws are enacted to 
apply equally to all members of the nation. All persons 
enjoying civil rights enjoy the same civil rights, and all 
persons enjoying political rights enjoy the same political 
rights. This is what is meant when it is affirmed that under 
the Government of the United States all men are equal. 
From certain other points of view they appear to be unequal. 
As regards their physical or mental powers, their oppor- 
tunities or their wealth, their power and the actual influence 
they exert in directing the public affairs of the nation, they 
are unequal; and some forms of inequality tend to increase 
as society grows from the simple to the more complex state. 
But it is the purpose of the Government to maintain equality 
before the law. To prevent any State, in exercising its 
legislative power, from violating this purpose, the four- 
teenth amendment to the Constitution provides that " no 



RIGHTS AND PRIVILEGES OF CITIZENS 237 

State shall make or enforce any law which shall abridge the 
privileges or immunities of citizens of the United States; 
nor shall any State deprive any person of life, liberty, or 
property without due process of law; nor deny to any 
person within its jurisdiction the equal protection of the 
law." There are, however, certain privileges which, when 
once granted, cannot be enjoyed by others. These are in- 
volved in franchises given to individual or corporate persons 
to do what, in the nature of things, can be done only by a 
few persons. When such a privilege is granted, it is pre- 
sumed that the business to be performed is important for 
the general welfare, and that it can be more efficiently done 
under an exclusive franchise than in any other way. In 
this case, as in the case of certain ministerial officers whose 
services are necessary to the general welfare, the supreme 
governmental authority is expected to select the agency 
that appears to be the most efficient for the attainment of 
the result required. 

Topics. — Indications of equality in the United States. — Signs 
of inequality. — Aim of the Government in this matter. — The four- 
teenth amendment. — Privileges that are necessarily monopolies. 

References. — Bryce, American Commonwealth, ii, 744-747; 
Ford, American Citizen's Manual, Part II, 17, 18; Hart, Actual 
Government, 32. 

135. Nature and Liberty. — An appeal is sometimes made 
to nature as offering an argument in favor of liberty; but 
the term "nature" is so vague that such an appeal bears 
no very definite meaning. If it is affirmed that man ought 
to be free because freedom is his natural inheritance, the 
assumption on which the affirmation rests is not sufficiently 
well established to make it the basis of a valid argument. 
It is nearer the truth to say that man inherits a position of 
dependence, and that the striving of the individual in his 
development, as of the race in its development, is toward 



238 THE GOVERNMENT OF THE UNITED STATES 

liberty. The liberty which we think of in connection with 
society is not a natural condition, but it is acquired as a 
result of progress under an enlightened government. With- 
in the meaning of the term we recognize civil liberty and 
political liberty, both defended by authority under the 
provisions of law. Any form of liberty that is conceived to 
exist not under law is only the liberty of the wild beast. It 
means merely that the possessor of it may take for his own 
enjoyment anything which he is not prevented from taking 
by the limitations of his agility, courage, strength, or cun- 
ning. This form of liberty, since it is conceived of as under 
no law, must be found, if anywhere, without the limits of 
the social organization. True liberty appears only when 
government arises to protect the individual person in the 
possession of his property, to defend him from the en- 
croachments and assaults of his fellows, and to secure him 
in the enjoyment of all those advantages which tend to his 
intellectual emancipation and development. 

Topics. — "Liberty by nature." — Liberty a result of enlighten- 
ment. — Liberty under law or liberty of the wild beast. 

References. — Lowell, Essays, 136-189; Cooley, Constitutional 
Law, 221-226. 

136. Civil and Political Liberty. — Civil liberty is a con- 
dition in which the individual members of a society enjoy 
such rights, and are under such obligations, as permit them 
to seek effectively their own advantage, and prevent their 
actions from becoming injurious to other persons, or im- 
peding social progress. Political liberty may be said to 
exist in a community when the individual members of that 
community possess the right to take part in making the 
laws. Civil liberty may exist without political liberty, but 
the enjoyment of political liberty by a large part of the 
community appears to be the surest guarantee of the con- 
tinuance of civil liberty. 



RIGHTS AND PRIVILEGES OF CITIZENS 239 

Topics. — Definition of civil liberty. — Political liberty. 
References. — Hart, Actual Government, 23-33; Cooley, Consti- 
tutional Law, 221-226. 

137. Religious Liberty. — The establishment of religious 
liberty is one of the important steps taken by the founders 
of the American Government. It was especially important 
on account of its influence in emancipating the thought of 
the people, and in making them really free. The original 
constitutional provisions touching this subject were only 
limitations on the powers of Congress. The first of these 
provisions declared that "no religious test shall ever be 
required as a qualification to any office or public trust under 
the United States"; the second, that "Congress shall make 
no law respecting an establishment of religion, or prohibiting 
the free exercise thereof." Notwithstanding these provi- 
sions, the several State governments were free to take such* 
action with respect to religion as seemed to them desirable. 
But the attitude assumed in the Constitution expressed the 
views of the citizens of the States; and these views deter- 
mined the action of the States, which have without excep- 
tion established constitutional guarantees of religious free- 
dom. These guarantees appear to protect adequately the 
individual citizen in worshiping as his conscience or his 
taste may dictate. The following is a general statement of 
the constitutional guarantees of the States: 

" 1. They established a system, not of toleration merely, 
but of religious equality. All religions are equally respected 
by the law: one is not to be favored at the expense of others, 
or to be discriminated against; nor is any distinction to be 
made between them, either in the laws, in positions under 
the law, or in the administration of the government. 

"2. They exempt all persons from compulsory support 
of religious worship, and from compulsory attendance upon 
the same. 



240 THE GOVERNMENT OF THE UNITED STATES 

"3. They forbid restraints upon the free exercise of 
religion according to the dictates of conscience, or upon the 
free expression of religious opinions." 

Topics. — Original constitutional provision touching religious 
liberty. — Position of the State governments in this matter. — State 
constitutional guarantees. 

References. — Dawes, How We Are Governed, 303; Ford, 
American Citizen's Manual, Part II, 11 ; Hinsdale, American Govern- 
ment, 352, 353; Hart, Actual Government, 27. 

138. " Due Process of Law " and " Law of the Land." — 

The phrase, "due process of law," as it appears in the four- 
teenth amendment has essentially the same meaning as the 
phrase, "law of the land." In setting forth the meaning of 
this phrase, jurists have shown that it is not always synony- 
mous with a legislative act. Webster said: "Everything 
which may pass under the forms of an enactment is not to 
be considered the law of the land. If this were so, acts of 
attainder, bills of pains and penalties, acts of confiscation, 
acts reversing judgments, and acts directly transferring one 
man's estate to another, legislative judgments, decrees, and 
forfeitures in all possible forms, would be the law of the 
land." According to Justice Story, "due process of law" 
means such an exercise of the powers of government as the 
settled maxims of law permit and sanction. When, for 
instance, a citizen has been charged with an offense which 
places his life and liberty in question, it is required that he 
shall be dealt with by due process of law; that is to say, 
there must be judicial proceedings; there must be an accusa- 
tion, a hearing before an impartial tribunal, with proper 
jurisdiction; and there must be a conviction and judgment 
before the punishment can be inflicted." 1 

"By the 'law of the land' is most clearly intended the 
general law — a law which hears before it condemns, which 

1 Story, On the Constitution, 4th ed., § 1943. 



RIGHTS AND PRIVILEGES OF CITIZENS 241 

proceeds upon inquiry, and renders judgment only after 
trial. The meaning is that every citizen shall hold his life, 
liberty, property, and immunities under the protection of 
the general rules which govern society." x 

Topics. — Meaning of phrase, " due process of law." — Meaning of 
"law of the land." 

References. — Goodnow, Comparative Administrative Law, ii, 
116; Hinsdale, American Government, 310, 363; Lowell, Essays, 85; 
Miller, Lectures, 664-666; Webster's Works, v, 487; Story, On the 
Constitution, fourth edition, § § 1943-1946. 

139. "A Man's House Is his Castle." — Not the least im- 
portant of the rights enjoyed by citizens of the United States 
is the right to hold their houses free from unregulated in- 
vasion either by the Government or by private persons. 
The third and fourth amendments to the Constitution deal 
directly with this subject. The third amendment provides 
that "no soldier shall, in time of peace, be quartered in any 
house without the consent of the owner, nor in time of war, 
but in a manner to be prescribed by law." This provision 
was framed not to set aside any evil existing at the time it 
was adopted, but to prevent the revival of a practice which 
had formerly been used as a means of oppression. 2 

This practice "at best ... is an arbitrary proceeding; 
it breaks up the quiet of home; it appropriates the property 
of the citizen to the public use without previous compensa- 
tion, and without assurance of compensation in the future, 
unless the law shall have promised it. It is difficult to 
imagine a more terrible means of oppression than would be 
the power in the executive, or in the military commander, 
to fill the house of an obnoxious person with a company of 
soldiers, who shall be fed and warmed at his expense, under 
the direction of an officer accustomed to the exercise of 

1 Webster, Works, v, 487. 2 See §§ 126, 127. 



242 THE GOVERNMENT OF THE UNITED STATES 

discretionary authority within the limits of his command, 
and in whose presence the ordinary laws of courtesy, not 
less than the rules of law which protect person and property, 
may be made to bend to whim or caprice." 1 

However effective for oppression may be the power to 
quarter soldiers in a private house without the consent of 
the owner, the ordinary citizen sees a greater danger in the 
liability of having the privacy of his house invaded either 
by private persons or by officers of the law under the pre- 
text of making an official search of the premises. To defend 
him against this danger, the fourth amendment was adopted. 
It declares that " the right of the people to be secure in their 
persons, houses, papers, and effects, against unreasonable 
searches and seizures, shall not be violated; and no warrants 
shall issue, but upon probable cause, supported by oath or 
affirmation, and particularly describing the place to be 
searched, and the persons or things to be seized." The point 
of vital importance in this matter is the distinction between 
reasonable and unreasonable searches. In order that a 
search may be considered reasonable and thus- be permitted 
under the law, it is required that a warrant shall be issued by 
a properly empowered magistrate to an officer authorized 
to serve it. Before the warrant is issued, the magistrate 
must receive satisfactory evidence that facts exist justify- 
ing its issue under the law; and the place to be searched, 
together with the persons or things sought, must be pointed 
out. The warrant must contain a particular description 
of the persons or things desired and the place to be searched. 
Ordinarily any search made without a warrant complying 
with these conditions will be regarded as unreasonable and 
prohibited by law; but conditions may exist under which 
without a warrant a man's house may be forcibly entered. 
This may be done for the sake of arresting a person for 



1 Cooley, Constitutional Law, 209. 



RIGHTS AND PRIVILEGES OF CITIZENS 243 

treason, felony,, or breach of the peace, when it is known 
that he is concealed therein. It may be done also in certain 
other cases; but generally the owner may forcibly prevent 
any person not having the proper warrant from entering 
and may, if necessary, carry his defense even to taking the 
life of the intruder. 

The fact that a warrant describes specifically the persons 
or things sought and the place to be searched prevents it 
from becoming an instrument of oppression. Formerly in 
England a general warrant was issued, which neither named 
nor described the person to be arrested nor defined the place 
to be searched. This form of warrant gave the ministerial 
officer full discretion as to the person or persons who might 
be taken, and unlimited authority with respect to places that 
might be searched. Warrants of this kind, inasmuch as 
they convey unrestricted power within certain limits, were 
almost always followed by acts of oppression; and tffe 
practice of issuing them was a grievance of which the people 
complained. They are no longer used, and since the de- 
cision in Wilkes's case 1 they have been held to be illegal. 
But in a few exceptional cases a peace officer may make 
arrests without a warrant. 

Topics. — Freedom from unregulated invasion. — Practice of 
quartering soldiers in private houses. — Invasion of one's house by 
private persons. — Fourth amendment. — Reasonable and unrea- 
sonable searches. — Definition of a warrant. — Forcible entry of one's 
house. — General warrant. 

References. — Ford, American Citizen's Manual, Part II, 15, 
16; Hinsdale, American Government, 354. 

1 John Wilkes was arrested on a general warrant for "a false, scan- 
dalous, and seditious libel " in 1763. Later he was released in virtue of 
his privilege as a member of Parliament. Subsequently he was several 
times re-elected and expelled. His final triumph established the privi- 
leges of members and the right of electors to select their representatives 
freely. 



244 THE GOVERNMENT OF THE UNITED STATES 

140. Slavery. — The progress of slavery and the discus- 
sion of its legal aspects were for several decades conspicuous 
features of the political life of the nation. The Civil War 
and the adoption of the thirteenth amendment introduced 
a new period. Slaves became free and acquired the rights of 
citizens. The Louisiana civil code before the emancipation 
thus defined a slave as he was then: "He is one who is in 
the power of a master to whom he belongs. The master may 
sell him, dispose of his person, his industry and his labor; 
he can do nothing, possess nothing, nor acquire anything, 
but what must belong to his master." The events relating 
to the origin and development of the institution of slavery 
and the views expressed by jurists and politicians concern- 
ing it are a part of the history of the United States; but a 
statement of the existing Government of the country re- 
gards these events and these views as belonging to an his- 
torical episode that is closed. Traces of their influence may 
be discovered in the present; but the political life of the 
nation proceeds now on the fact that all men within the 
jurisdiction of the Government are free, and that they have 
been confirmed in their freedom by the solemn declaration 
of the nation, uttered in a constitutional amendment. 
This amendment affirms that " neither slavery nor involun- 
tary servitude, except as a punishment for crime whereof 
the party shall have been duly convicted, shall exist within 
the United States, or any place subject to their jurisdiction." 
Thus from the position of chattels subject to purchase and 
sale, slaves have been advanced to the position of free men. 
Under the law they are now factors in the political life of 
the nation, like other free men. But while all free men are 
in theory equal under the law, they are not all equally 
powerful in the exercise of their common political rights. 
This form of inequality exists even among those whose 
ancestors have all been free. Those who were formerly 
slaves, and their descendants, are handicapped in this mat- 



RIGHTS AND PRIVILEGES OP CITIZENS 245 

ter by their lack of cultivation and self-control and by the 
prejudice to which they are subjected by reason of the ser- 
vile position of their ancestors. 1 

Topics. — Slavery discussion. — The Civil War. — Definition of 
slave. — The thirteenth amendment. — Phases of inequality. 

References. — Bryce, American Commonwealth, h, 12-16; 
Hinsdale, American Government, 357-367; Lalor, Cyclopaedia, iii, 
725; Macy, Our Government, 207, 208. 

141. Points in the History of Legislation Concerning 
Slavery. 

1787. Constitutional provision: " The migration or importa- 
tion of such persons as any of the States now existing 
shall think proper to admit, shall not be prohibited 
by the Congress prior to the year 1808; but a tax or 
duty may be imposed on such importation, not ex- 
ceeding ten dollars for each person." 

1787. The Ordinance for the government of the territory 
of the United States northwest of the River Ohio 
provided that " there shall be neither slavery nor in- 
voluntary servitude in the said territory, otherwise 
than in the punishment of crimes whereof the party 
shall have been duly convicted: 'provided, always, that 
any person escaping into the same, from whom labor 
or service is lawfully claimed in any one of the origi- 
nal States, such fugitive may be lawfully reclaimed 
and conveyed to the person claiming his or her labor 
or service as aforesaid." 2 

1794. Slave trade to foreign countries was prohibited. 

1807. The importation of slaves was prohibited, the act to 
take effect on the first of January, 1808. 

1S20. The slave trade was declared to be piracy, and made 
punishable with death. 

1 See § 133. 2 Article 6. 



246 THE GOVERNMENT OF THE UNITED STATES 

1820. The enabling act for Missouri was passed, providing 
that Missouri might become a State, but under the 
condition that slavery should be forever excluded 
from all other parts of the Louisiana Purchase lying 
north of the southern limit of the State, or latitude 
36° 30'. 

1854. An act was passed organizing the Territories of 
Kansas and Nebraska and providing that they might 
be admitted as States at the proper time with or 
without slavery, thus setting aside the provisions of 
the so-called Missouri Compromise and declaring them 
void. 

1862. The first proclamation concerning the emancipation 
of the slaves was issued by President Lincoln. This 
was a call and a warning. By it President Lincoln 
called to the inhabitants of the revolted States to lay 
down their arms and return to the position of loyal 
citizens. Through it he moreover warned them that 
unless they resumed their allegiance to the Govern- 
ment of the United States before the first of Janu- 
ary, 1863, he would declare their slaves free men 
and use the forces of the army and the navy to 
uphold this declaration. The only evident effect 
of this proclamation was that the president of the 
Confederacy ordered certain measures of retalia- 
tion. 

1863. The emancipation proclamation was issued on Jan- 
uary 1, 1863. This proclamation designated the 
States and parts of States in which it was to apply, 
and enumerated the places that were to remain as 
if it had not been issued. It ordered and declared 
"that all persons held as slaves within said desig- 
nated States and parts of States are, and hencefor- 
ward shall be, free; and that the executive govern- 
ment of the United States, including the military and 



RIGHTS AND PRIVILEGES OF CITIZENS 247 

naval authorities thereof, will recognize and maintain 
the freedom of said persons." This proclamation 
was issued not by virtue of any power specifically 
granted to the President by the Constitution, but " by 
virtue of the power in him vested as commander 
in chief of the army and navy of the United States in 
time of actual armed rebellion against the authority 
and government of the United States, and as a fit 
and necessary war measure for suppressing said 
rebellion." The authority of the President as com- 
mander in chief did not extend practically within 
the lines of the forces in revolt; but even if the status 
of the slaves there was not materially affected, the 
proclamation was at least an announcement that 
this authority would become effective as fast as 
territory was brought within the lines of the Federal 
forces. 

1865. The thirteenth amendment to the Constitution was 
adopted, providing that "neither slavery nor in- 
voluntary servitude, except as a punishment for 
crime whereof the party shall have been duly con- 
victed, shall exist within the United States, or any 
place subject to their jurisdiction." 

1870. The fifteenth amendment to the Constitution was 
adopted, providing that " the right of citizens of the 
United States to vote shall not be denied or abridged 
by the United States or by any State on account of 
race, color, or previous condition of servitude." 

Topics. — Importation of slaves. — Ordinance of 1787. — Slave 
trade. — Enabling act for Missouri. — Kansas and Nebraska Bill. — 
Emancipation. — Thirteenth amendment. — Fifteenth amendment. 

References. — Bryce, American Commonwealth, i, 55, 472, 475; 
Dawes, How We Are Governed, 320-324; Hinsdale, American 
Government, 325, 326, 332, 357-367; Lalor, Cyclop&dia, i, 838; iii, 
540; Miller, Lectures, 406, 456. 



248 THE GOVERNMENT OF THE UNITED STATES 

FOR ADVANCED STUDY 

Personal Rights. — Burgess, Political Science, i, 17 '4-252; 
Cooley, Constitutional Law, Chap. IV, §§3, 14; Chaps. XII-XVI; 
Cooley, Constitutional Limitations, Chaps. IX-XIII ; H. von Hoist, 
Constitutional Law, §§ 72-78, 84-87; Hinsdale, American Govern- 
ment, Chaps. XLVII, XL VIII. 

Liberty. — Lieber, On Civil Liberty and Self -Government, Chaps. 
VI, VII; Mill, On Liberty; Hurd, Law of Freedom and Bondage; 
Cooley, Constitutional Limitations, Chap. X; Hill, Liberty Docu- 
ments, Chaps. VIII, XXI-XXIII. 

The Development of Religious Liberty. — Eliot, American 
Contributions to Civilization, Nos. 1, 2, 15; Bryce, American Com- 
monwealth, ii, Chaps. CVI, CVII; Lecky, Democracy and Liberty, 
i, 540-557; Jennings, Eighty Years of Republican Government, Chap. 
IX; H. von Hoist, Constitutional Law, §§ 94-98; Wright, Practical 
Sociology, §§ 38, 39. 

The Emancipation of the Slaves. — Nicolay and Hay, Lin- 
coln, vi, Chap. VIII, XIX ; Burgess, Civil War, ii, 97-101 ; Morse, 
Lincoln, ii, 116-121; Rhodes, History of the United States, iii, 
157-163. 

The Right to Vote.— Lalor, Cyclopaedia, iii, S22-S33; See 
bibliography on page 833. 

Magna Charta. — Consult the text of the charter and the dis- 
cussion in Stubbs's Constitutional History of England. 

Slaves as "Contraband of War." — Nicolay and Hay, 
Lincoln, iv, 387-396; Rhodes, History of the United States, iii, 466- 
468. 

Changes in the Federal Constitution. — Cooley and others, 
Constitutional History as Seen in Constitutional Law; Burgess, 
Reconstruction and the Constitution, 73-79; Bryce, American Com- 
monwealth, abridged edition, 271-284. 

Equality. — Harris, Progress and Inequality; Moses, Democracy 
and Social Growth, 1-35. 



CHAPTER IX 

THE CONTINENTAL TERRITORIES 

142. The Government of the Northwestern Territory. — 

At the close of the War of Independence the General Govern- 
ment did not possess, or exert direct control over, any 
territory whatsoever. All lands embraced within the bound- 
ary fixed by the treaty of 1783 were covered by the claims 
of the States. The territorial claims of several of these 
States — New Hampshire, Rhode Island, New Jersey, Del- 
aware, and Maryland — did not reach beyond the region 
now occupied by New England and the middle and southerrfr 
Atlantic States. The rest of the territory between Florida 
and the Lakes was claimed by the other States. An im- 
portant step in the development of the dignity and inde- 
pendence of Congress was the cession of the territory 
bounded by the Great Lakes and the Mississippi and Ohio 
rivers to the General Government. Such a cession had been 
contemplated before the end of the war, as may be seen by 
the following resolution, submitted to Congress in October, 
1777: 

"That the United States in Congress assembled shall 
have the sole and exclusive right and power to ascertain 
and fix the western boundary of such States as claim to the 
Mississippi or the South Sea, and lay out the land beyond 
the boundary so ascertained into separate and independent 
States, from time to time, as the numbers and circumstances 
of the people thereof may require." 

17 249 



250 THE GOVERNMENT OF THE UNITED STATES 

Maryland alone voted for this resolution. Other resolu- 
tions of a somewhat similar import were considered in 
connection with the adoption of the Articles of Confedera- 
tion; but they were not carried, and the failure to make 
any satisfactory provision respecting the northwestern lands 
caused Maryland to withhold her assent to the Articles of 
Confederation until 1781. The beginning of a solution 
of the problem of a central Government appeared, when, 
in 1780, the legislature of New York provided: (1) That 
the delegates of that State in Congress should restrict the 
boundaries of the States in the western parts, as they might 
think to be expedient, with respect either to the jurisdiction 
or the right of the soil, or both; (2) that the territory so 
ceded should inure to the benefit of the States in the Union; 
(3) that if any lands so ceded should remain within the juris- 
diction of the State, they should be surveyed and disposed 
of only as Congress might direct. 

This was the first important step taken toward the ces- 
sion of territory to the Federal Government. It set an 
example for the other States to follow. The policy of the 
Federal Government with respect to the lands that had been , 
or might be ceded to it was indicated in a resolution adopted 
by Congress, October 10, 1780, in which it was announced 
that these lands would "be disposed of for the common 
benefit of the United States, and be settled and formed into 
distinct republican States, and that these States. would 
become members of the Federal Union, and have the same 
rights of sovereignty, freedom, and independence as the 
other States." 

Connecticut was the last of the States to cede its western 
lands. Its "deed of release and cession" was authorized, 
May 11, 1786. This action completed the title of the Federal 
Government to the lands that came to be known as the 
Northwestern Territory; but it left the tract known as 
the Western Reserve in the hands of Connecticut. In the 



THE CONTINENTAL TERRITORIES 251 

course of the negotiations respecting these cessions, four 
different suggestions for the disposition of the northwestern 
lands were made: 

1. That the claimant States should retain them for their 
own exclusive use. 

2. That the lands or their proceeds should be distributed, 
in whole or in part, among the States, leaving the juris- 
diction in the hands of the claimant States. 

3. That Congress should assert the sovereign power of 
the United States over them, without waiting for cessions. 

4. That they should be ceded by the claimant States to 
the United States. 

The cessions having been made, in accordance with the 
fourth suggestion, Congress undertook to give this region a 
political organization. This was done by the passage of the 
Ordinance of 1787, which was entitled "An ordinance for 
the government of the territory of the United States north- 
west of the river Ohio." 1 This ordinance "was a constitu- 
tion for the territory northwest of the river Ohio," and * 
was "at the same time "a model for later legislation relating 
to the national Territories." The territory was recognized 
as one district for the purpose of temporary government; 
but Congress could divide it into two districts later, if this 
appeared to be expedient. The second section of the ordi- 
nance established rights of inheritance for the inhabitants 
of the district. It provided that landed estates belonging 
to persons dying intestate should be divided among the 
children of the intestate; or, if none, among the next of kin, 
in equal shares. 

The Government created by this ordinance consisted 
of a governor, a secretary, three judges, a legislative council, 
and a house of representatives. These last two houses and 
the governor constituted the general assembly. 

1 See Appendix, page 371. 



252 THE GOVERNMENT OF THE UNITED STATES 

The governor was appointed by Congress for a term of 
three years. It should be remembered in this connection 
that the government of the Northwestern Territory was 
organized before the adoption of the Constitution. The 
Congress was, therefore, the sole authority of the Union. 
Hence, as there was no President, Congress made appoint- 
ments, thus exercising both legislative and executive power. 
The governor of the Territory was required to have a free- 
hold estate in the district of at least 1,000 acres of land. 
He was the commander in chief of the militia, and was 
empowered to appoint all officers " below the rank of gen- 
eral officer." He might also appoint, before the organ- 
ization of the general assembly, such magistrates and 
other civil officers, in each county or township, as he should 
find necessary for the preservation of peace and good order 
in the same. 

The secretary and the judges were appointed by Con- 
gress; the secretary for a term of four years, the judges for 
an indefinite term, as long as they might be able to render 
satisfactory service. Each of these officers was required to 
live in the Territory, and to have a freehold of 500 acres 
of land. Two of the judges might form a court having 
common-law jurisdiction. The governor and the judges, or 
a majority of them, might adopt and publish as provisional 
laws of the district such laws of the original States, criminal 
and civil, as might be necessary. These provisional laws 
should remain in force in the Territory until the organi- 
zation of the general assembly, unless disapproved of by 
Congress. 

The district legislature was to be organized as soon as 
there were 5,000 free mature male inhabitants in the dis- 
trict. The representatives were to be elected from the 
"counties or townships," one for each 500 male inhabi- 
tants; and each representative was required to have been a 
citizen of the United States three years, or to have resided 



THE CONTINENTAL TERRITORIES 253 

in the district three years, and to have 200 acres of land in 
the district. The elector was required to have 50 acres of 
land, and to have been a citizen of one of the States, or a 
resident in the district for two years. The representatives 
were elected for a term of two years. 

The governor and the house of representatives were two 
of the elements of the general assembly. The third element 
was a legislative council. This body consisted of five mem- 
bers, holding office for five years, unless sooner removed by 
Congress. The members of the legislative council were 
appointed by Congress from a list of ten persons nominated 
by the house of representatives of the district. In case of a 
vacancy, Congress appointed one of two persons nominated 
by the same house of representatives. Each member of the 
council was required to possess a freehold of 500 acres of 
land in the district. The general assembly thus constituted 
made laws for the district; and no bill or legislative act 
could be of any force without the governor's assent. The 
governor of the Northwestern Territory thus held the power 1 
of an absolute veto, and it is noteworthy that this power was 
not conferred upon either the President or any governor of 
a State. 

The Ordinance of 1787 ends with six articles that may 
be called a bill of rights or constitutional guarantees. These 
articles declare and confirm to the inhabitants freedom of 
worship, the benefits of writs of habeas corpus, trial by 
jury, judicial proceedings according to the common law, 
and moderate fines. They forbid cruel or unusual punish- 
ments, and the taking of one's liberty or property, but by 
the judgment of his peers, and in pursuance of the law of the 
land. They provide that schools shall forever be encouraged; 
that faith shall be observed toward the Indians; and that 
the property of the Indians shall not be taken without their 
consent. They affirm that the inhabitants shall be subject 
to the Articles of Confederation and the ordinances of 



254 THE GOVERNMENT OF THE UNITED STATES 

Congress; that the territory of the district may be divided 
into not less than three nor more than five States. The 
sixth article prohibits slavery, but provides that fugitive 
slaves may be returned to their masters in other States. 

The Old Northwest has been divided; and the States of 
Ohio, Indiana, Illinois, Michigan, Wisconsin, and Minne- 
sota have been formed out of its territory. The Ordinance 
of 1787 has ceased to be in force; but this noteworthy 
organization of a colonial dependency continues to be of 
great historical importance. It has furnished a model for 
later territorial governments in lands that have been ac- 
quired since the treaty of 1783. The successful manage- 
ment of the Territories that earlier or later have occupied a 
large part of the area of the United States has been due to 
the existence of this excellent model and the good sense of 
legislators in following it. 

Topics. — Western lands owned by States. — First cession to 
General Government. — Early resolution in Congress. — Maryland's 
attitude.- — Resolution by New York, 1780. — Congressional resolu- 
tion, 1780. — Action by Connecticut. — The Western Reserve. — Four 
proposals respecting northwestern lands. — Ordinance of 1787. — • 
Governmental organization provided. — The bill of rights in the 
ordinance. — States formed from the Northwestern Territory. 

References. — Hinsdale, The Old Northwest, 243, 268; Poore, 
Charters and Constitutions, i, 431; Hart, Actual Government, 23, 
364, 365; Fiske, Civil Government, 90, 263; McLaughlin, History of 
the American Nation, 223. 

143. The Status of Territories. — While Congress was ne- 
gotiating with the several States for a cession of the west- 
ern lands claimed by these States, Maryland stipulated that 
the western territory " should be considered as a common 
property to be parceled out by Congress into free, con- 
venient, and independent governments, in such manner and 
at such times as the wisdom of that assembly shall hereafter 



THE CONTINENTAL TERRITORIES 255 

direct." This stipulation was made in December, 1778. 
In October, 1780, Congress adopted a resolution providing 
that the ceded territory should be " formed into distinct 
republican States which should become members of the 
Federal Union and have the same rights of sovereignty, 
freedom, and independence as the other States." This 
resolution indicated a policy favoring the ultimate extension 
of the system of States to the unsurveyed regions of the 
West. It forecast the extension of the Federal Govern- 
ment. New States were to be formed within the limits of 
the ceded lands, but the new political societies had to pass 
through a probationary period of territorial organization and 
dependence before they could become States. The first 
stage of the history of this organization was that indicated 
in the Ordinance of 1787, described in the preceding section. 
Since the adoption of the Constitution, and thus under the 
present Federal Government, the organic law of a Territory 
is the United States statute which establishes the Territory 
and provides for its government. Each statute of this kinw 
passed on organizing a new Territory has provided that 
" there shall be established within the said Territory a gov- 
ernment in all respects similar to that provided by the 
ordinance of Congress passed on the thirteenth day of Juty, 
1787, for the government of the territory of the United States 
northwest of the river Ohio,, and the inhabitants thereof 
shall be entitled to and enjoy, all and singular, the rights, 
privileges, and advantages granted and secured to the people 
by the said ordinance." Such a statute holds essentially 
the same relation to the government of the Territory that a 
State constitution holds to the government of the State, 
Moreover, the political position of a Territory is essentially 
the same as that of a British colony; for the organic law 
of the colony is an act of Parliament. The organic law of 
Canada is a British statute. The several Territories that 
have existed under the United States Government have 



256 THE GOVERNMENT OF THE UNITED STATES 

existed practically as colonial dependencies, to which Con- 
gress has granted certain powers of self-government. 

The members of the new communities formed in the 
territory ceded by the original States were not known as 
colonists, and thus they escaped whatever unpleasant sug- 
gestions might have come from such a designation. They 
were not led to think of themselves as dependents. The 
political societies to which they belonged were given the 
colorless designation of Territories. The colonial policy 
here carried out by the United States differed from the 
contemporary colonial policies of other governments in two 
particulars: it allowed the inhabitants a larger measure of 
political liberty, and it held out to the Territory the prospect 
of becoming a State. The idea that the status of a Territory 
is transitory, that it is the first step toward statehood, has 
hitherto been regarded as- the characteristic feature of the 
colonial system of the United States. It was easy to carry 
out practically this idea as long as the population of the 
Territories was made up of emigrants from the States, and 
as long as the lands they occupied were contiguous to the 
lands of the States; for through this process the Territories 
came to be occupied by inhabitants not differing in any 
essential particular from the inhabitants of the rest of the 
Union. They acquired in many cases, doubtless, manners 
and customs peculiar to the frontier, but the circumstances 
of their life tended to strengthen rather than to weaken 
their sentiments of liberty and their democratic spirit of 
equality. 

But when colonial territory far removed from the Amer- 
ican continental possessions of the nation is largely popu- 
lated by members of an alien race, whose antecedents and 
ideas, traditions and customs, differ widely from those of 
the bulk of the nation, the colonial question for the United 
States assumes a new aspect. It is no longer possible to 
emphasize as heretofore the idea that the Territory will 



THE CONTINENTAL TERRITORIES 257 

ultimately grow into a State. ~The colonial policy carried 
out with respect to Michigan when it was a Territory occupied 
by inhabitants who had emigrated from the older States 
was a policy somewhat different from that suggested by the 
circumstances of the Philippine Islands. The inhabitants 
of the islands have no race affiliation with the bulk of the 
inhabitants of America, and they are without that political 
education and experience which have finally made popular 
government possible in England and the United States. 

Topics. — Congressional resolution as to new States. — Organic 
law of Territory. — Political position of a Territory. — Territory 
compared with British colony; with insular dependency. 

References. — Hart, Actual Government, 31, 32, 364-373; 
Bryce, American Commonwealth, 122, 346, 552-559; Miller, Lec- 
tures, 638. 

144. The Organization of Territories. — When the first 
Territories were organized, they had few inhabitants; and v 
these lived in small, isolated settlements or were scattered 
throughout the wilderness. The kind of government that 
existed in the several States was not suited to the conditions 
of the new country, arid by the Ordinance of 1787 a new 
form was created. -This became the model for the later 
territorial governments. 1 Its fundamental feature was 
-dependence on the Federal Government. The governor, 
the secretary, and the judges were at first appointed by 
Congress; but later, under the Constitution, after the estab- 
lishment of the presidency, they were appointed by the 
President. The governor and the judges might adopt from 
State statutes provisional laws during the period before the 
mature male population had increased so as to number 
5,000. After this there was to be created a territorial 
legislature, composed of a legislative council and a house of 

1 See page 251. 



258 THE GOVERNMENT OF THE UNITED STATES 

representatives. The legislature in this form possessed ex- 
tensive legislative authority covering "all rightful subjects' 
of legislation," including the granting of charters of incorpo- 
ration, endowing institutions of learning, and providing for 
the exercise of the right of eminent domain. 1 The power 
of absolute veto was held by the governor under the Articles 
of Confederation, but under the Constitution the absolute 
veto was not given either to the President or to any terri- 
torial or State governor. Under this organization the 
territorial legislature might appoint a delegate who should 
have the right to speak in Congress but not the right to vote. 
In some of the Territories, however, the delegate was chosen 
by the people. The details of organization varied in some 
instances widely from the original model. 

The first act providing a government for Louisiana simply 
empowered the President to appoint all civil, military, and 
judicial officers of the new Territory, to define their duties, 
and to support them with the army and navy of the United 
States. Under the later organization of this Territory there 
was a governor appointed by the President for three years, 
and a secretary appointed for four years. There was also a 
legislature composed of the governor and a legislative coun- 
cil of thirteen members. The judicial power was exercised 
through a system of courts in which the judges were ap- 
pointed for four years, and the people enjoyed the right of 
trial by jury and the privilege of bail. The legislature of 
the Territory of Missouri, formed in 1812, consisted of a 
governor, a legislative council, and a house of representa- 
tives. The members of the house of representatives were 
elected by the people. The legislative council was com- 
posed of nine members appointed by the President from a 
list of eighteen nominated by the house of representatives 
of the Territory. 

1 See § 130. 



THE CONTINENTAL TERRITORIES 259 

In the later Territories the legislative council is com- 
posed generally of twelve persons, and the house of repre- 
sentatives of twenty-four, each elected for two years by 
voters, whose right to vote is determined by the territorial 
statutes. There is also a supreme court of the Territory, 
consisting of three or more judges appointed by the Presi- 
dent. This court administers such Federal laws as are 
properly applicable to the Territory, and also the statutes 
created by the territorial legislature. The inhabitants 
enjoy the same civil rights as other American citizens, but 
their political rights are limited. They have no part in the 
•national Government, for their representatives in Wash- 
ington have no vote. The people of the Territories may 
not vote at any presidential election. Their governors and 
judges are appointed by the President, and Congress may 
set aside any statute passed by their legislature. Congress, 
moreover, fixes the time and manner of their transforma- 
tion into a State. 

Topics. — Source and extent of power of territorial government. 
— Delegates to Congress. — First law providing for government of 
Louisiana. — Later government of Louisiana. — Territory of Missouri. 
— Government of later Territories. — Rights of the people. 

References. — Bryce, American Commonwealth, i, 553; Lalor, 
Cyclopaedia, iii, 914-920; Cooley, Constitutional Law, 36, 37, 52, 53, 
136, 164-168. 

145. Power of Congress over Territories. — Ever since the 
States ceded to the General Government whatever rights 
they had to western lands, Congress has exercised the power 
to govern these lands under territorial organizations. It 
may be still a question whether this power is based on a 
mere proprietary right, like the right which a community 
may have in lands, or on the right of political dominion 
which a sovereign necessarily exercises over all territory and 
inhabitants that lie within the limits of its jurisdiction. 



260 THE GOVERNMENT OF THE UNITED STATES 

Whatever may be the result of inquiry into this question, 
Congress has from the beginning exercised supreme control 
over all lands that have been added to the Union and not 
to any State. Not only has the Government of the United 
States acted on the supposition that it might acquire terri- 
tory, but its power and right in this matter have been 
affirmed by the Supreme Court. " The Constitution con- 
fers absolutely on the Government of the Union the powers 
of making war and of making treaties; consequently that 
Government possesses the power of acquiring territory 
either by conquest or by treaty." The territory having 
been acquired, the duty of controlling it devolves upon 
Congress; for, according to the Constitution, " the Congress 
shall have power to dispose of, and make all needful rules 
and regulations respecting, the territory or other property 
belonging to the United States." Congress, then, possesses 
the power to legislate for the Territories; and this power is 
exclusive. "It may be exercised directly, or delegated to 
local governments set up by Congress and retained under 
its supervision." This position has been recognized in the 
practice of the General Government, and it is upheld by 
the decisions of the Supreme Court. If Congress possesses 
the unquestioned power to govern such Territories, it would 
seem to be idle to affirm that they must be transformed 
into States. The determination of the time Avhen a Terri- 
tory shall be converted into a State is with Congress, and 
Congress cannot be compelled to act. There is, moreover, 
no other way besides that controlled by Congress by which 
a Territory may become a State. The language of the Con- 
stitution in this matter is permissive : " New States may be 
admitted by Congress into this Union." If Congress in its 
wisdom finds that it is not advisable to transform a Terri- 
tory into a State after fifty years, there appears to be no 
constitutional power to override its decision, if it adheres 
to this view after four hundred years, 



the Continental territories 261 

Topics.— Control of Federal territory in the past. — Congres- 
sional power exclusive. — As to transformation of Territories into 
States. 

References. — Miller, Lectures, 638; Hart, Actual Government, 
372; Cooley, Constitutional Law, 164-168. 

146. Changing a Territory into a State. — It is expected 
that a continental Territory will be changed into a State as 
soon as the number of inhabitants and other conditions 
warrant conferring upon it the powers and liberties that 
belong to a State in the Union; but Congress has complete 
discretion in this matter and may decide to admit or not to 
admit a Territory, as it may appear politically advantageous 
to the party dominant in Congress for the time being. It 
may happen that a Territory may have a sufficient number 
of inhabitants to make its admission desirable, but still not 
be admitted because of their ignorance or lawlessness or 
unpromising traditions. New Mexico remained a Territory 
even after its inhabitants numbered 327,301. Arizona had a 
population of at least 204,354 before it became a State. A 
large part of the inhabitants in these cases were of a mix- 
ture of Spanish and Indian blood, and not well suited by 
character or tradition to establish and develop republican 
institutions. Usually, in turning a Territory into a State, 
Congress passes an enabling act. Under this act the voters 
elect the members of a constitutional convention which 
proceeds to make a draft of a constitution. This draft 
having been adopted by the voters of the Territory and 
having thus become the constitution, the Territory is ad- 
mitted to the Union as a State either by a proclamation 
of the President or by an act of Congress. Nevada, having 
formed and adopted a constitution, was admitted as a State 
by a proclamation of the President. 

There is another method of turning a Territory into a 
State. In this case, the people, without a congressional 



262 THE GOVERNMENT OF THE UNITED STATES 

enabling act, form a constitution and elect the officers 
provided for by it. They then present the constitution to 
Congress and apply for admission as a State under this con- 
stitution. It may happen, moreover, that when a constitu- 
tion has been formed, either with or without an enabling act, 
and presented to Congress, that body may require of the 
Territory certain concessions before admission. Congress 
may require that a portion of territory shall be yielded, or 
that the proposed rule of suffrage shall be changed, indicat- 
ing that admission is a matter entirely under the control 
of Congress. 

Topics. — Power to convert a Territory into a State. — Con- 
sideration delaying admission of a State. — Processes of changing 
a Territory into a State. 

References. — Bryce, American Commonwealth, i, 556; Cooley, 
Constitutional Law, 169-177. 



147. Texas and California. — Texas and California be- 
came States without passing through the preliminary Terri- 
torial stage. Texas was at first a? part of Mexico. Under 
the Mexican federal constitution of 1824, it was embraced 
in the "state of Coahuila and Texas." Soon after the or- 
ganization of this State its population was increased by 
immigration from the United States. In 1835 Santa Anna 
abolished the Mexican federal government and reduced the 
States to mere departments under a centralized adminis- 
tration. The inhabitants of Texas rebelled, organized a 
provisional government, framed a constitution, and proposed 
to defend themselves as an independent state. The in- 
dependence of the Republic of Texas was acknowledged 
by the United States, England, France, and Belgium. A 
treaty of annexation between Texas and the United States 
was formed in 1844, but it was rejected by the Senate by a 
vote of 16 to 35. By a joint resolution passed by the House 



THE CONTINENTAL TERRITORIES 263 

and by the Senate in December, 1845, Texas was admitted 
as a State. 

Texas, like the Hawaiian Islands later, was annexed to 
the United States by a joint resolution of Congress. Texas 
had already adopted a constitution and thus became a 
State immediately on its annexation. 1 

1 JOINT RESOLUTION FOR THE ADMISSION OF THE STATE 
OF TEXAS INTO THE UNION. 

Whereas, The Congress of the United States, by a joint resolution 
approved March the first, eighteen hundred and forty-five, did consent 
that the Territory properly included within, and rightfully belonging to, 
the Republic of Texas, might be erected into a new State, to be called 
the State of Texas, with a republican form of government, to be adopted 
by the people of said republic, by deputies in convention assembled, 
with the consent of the existing government, in order that the same 
might be admitted as one of the States of the Union; which consent of 
Congress was given upon certain conditions specified in the first and 
second sections of said joint resolution; and whereas the people of the 
said Republic of Texas, by deputies in convention assembled, with the 
consent of the existent government, did adopt a constitution, and erect a 
new State with a republican form of government, and, in the name of the 
people of Texas, and by their authority, did ordain and declare that they 
assented to and accepted the proposals, conditions, and guarantees con- 
tained in said first and second sections of said resolution: and whereas 
the said constitution, with the proper evidence of its adoption by the 
people of the Republic of Texas, has been transmitted to the President 
of the United States and laid before Congress, in conformity to the pro- 
visions of said joint resolution: Therefore — 

Resolved by the Senate and House of Representatives of the United 
States of America in Congress assembled, That the State of Texas shall 
be one, and is hereby declared to be one, of the United States of America, 
and admitted into the Union on an equal footing with the original States 
in all respects whatever. 

Sec. 2. And be it further resolved, That until the representatives 
in Congress shall be apportioned according to an actual enumeration 
of the inhabitants of the United States, the State of Texas shall be 
entitled to choose two representatives. 

Approved, December 29, 1845. 



264 THE GOVERNMENT OF THE UNITED STATES 

The consequence of annexing Texas was war with Mex- 
ico. This war and the treaty which followed it brought 
to the United States the vast regions at present embraced 
in Utah, Nevada, Colorado, New Mexico, California, and a 
large part of Arizona. The rapid increase of the population 
of California, due to the discovery of gold, made necessary 
the establishment of an effective government for that 
region. Therefore, in the autumn of 1849, a State con- 
stitution was formed and adopted, and under it a gov- 
ernor and other officers were elected. These officers entered 
upon the performance of their duties without congressional 
authority and conducted the affairs of government until 
September, 1850, when California was admitted to the Union 
as a State. 1 

During this period, between the formation of the con- 
stitution and the admission of California as a State, this 
region belonged by treaty to the United States; but there 
had been no legislation organizing here a Territorial gov- 

1 ACT FOR THE ADMISSION OF THE STATE OF CALIFORNIA 
INTO THE UNION. 

Whereas, The people of California having presented a constitution 
and asked admission into the Union, which constitution was submitted 
to Congress by the President of the United States, by message dated 
February thirteenth, eighteen hundred and fifty, and which, on due 
examination, is found to be republican in its form of government: 

Be it enacted by the Senate and House of Representatives of the United 
States of America in Congress assembled, That the State of California shall 
be one, and is hereby declared to be one, of the United States of America, 
and admitted into the Union on an equal footing with the original States 
in all respects whatever. 

2. The said State of California is admitted into the Union upon the 
express condition that the people of said State, through their legislature 
or otherwise, shall never interfere with the primary disposal of the public 
lands within its limits, and shall pass no law and do no act whereby the 
title of the United States to, and right to dispose of, the same shall be 
impaired or questioned; and that they shall never lay any tax, or assess- 



THE CONTINENTAL TERRITORIES 265 

ernment or authorizing the creation of a State government. 
A government, however, existed in fact, created and sup- 
ported by the people, but had no representation whatsoever 
in Congress and had not received any congressional au- 
thority. 

The proposition to admit Texas provoked an especially 
savage clash of the parties. Under ordinary circumstances, 
if there is a Territory, the population of which is likely to 
continue to present a majority for one party in its elections, 
that party will naturally favor its admission as a State. 
It will thereby gain two more senators, who may perhaps 
be counted on even in doubtful years. It will receive 
additions also to its forces in the House. The opposite 
party will quite naturally wish to delay the admission of 
such a State. While slavery existed in the South, the an- 
tagonism between the parties at that time was intensified 
by the strong desire of the inhabitants of the Southern States 
to extend their opportunities for employing the labor of 
slaves, and by the eagerness of the Northern people to pre- 
vent the extension of slavery. The question of the ad- 
mission of Texas was a concrete case that showed how 
serious the antagonism of parties might become over the 

ment of any description whatsoever, upon the public domain of the 
United States; and in no case shall non-resident proprietors, who are 
citizens of the United States, be taxed higher than residents; and that 
all the navigable waters within the said State shall be common high- 
ways, and forever free, as well to the inhabitants of said State as to the 
citizens of the United States, without any tax, impost, or duty therefor; 
provided, that nothing herein contained shall be construed as recognizing 
or rejecting the propositions tendered by the people of California, as 
articles of compact in the ordinance adopted by the convention which 
formed the Constitution of that State. 

3. All laws of the United States which are not locally inapplicable 
shall have the same force and effect within the said State of California 
as elsewhere within the United States. 

Approved September 9, 1850. 
13 



266 THE GOVERNMENT OF THE UNITED STATES 

admission of a State. But since the abolition of slavery, 
which was the principal bone of contention, the basis of 
antagonism respecting the admission of States has been 
reduced to the legitimate desire of each of the two parties to 
hold a majority in Congress. 

Topics. — States that were never Territories. — History of 
Texas. — Joint resolution admitting Texas. — Consequence of annex- 
ing Texas. — Government of California, 1849, '50. — Act admitting 
California. — Party contention over the admission of States. 

References. — McLaughlin, History of the American Nation, 
353-358, 362-381 ; Lalor, Cyclopaedia, iii, 921 ; Hart, Actual Govern- 
ment, 117, 344-346; Fiske, Civil Government, 263, 264. 



FOR ADVANCED STUDY 

The Original Territory of the United States.— Gannett, 
Boundaries of the United States and of the Several States (second 
edition, United States Geological Survey, Bulletins, No. 171); 
Magazine of Western History, ii, 403-423; American Historical 
Review, i, 70-87, 251-269; Twelfth Census, Bulletins, No. 74; Hart, 
Epoch Maps (revised edition, 1899). 

The Territorial Growth of the United States. — Inter- 
national Monthly, iv, 794-820; Hinsdale, Old Northwest, Chap. X; 
Roosevelt, Winning of the West, ii, Chap. XIII ; iv, Chap. VI ; Hart, 
Contemporaries, iii, §§ 111-115, 143, 149; iv, §§ 11, 14, 46, 174, 185; 
Adams, United States, ii, Chaps. II-V; V, 305-315; VI, 236, 237; 
McMaster, United States, iii, 31-34; 370-375, 536-540; iv, 476-483; 
Schouler, United States, iv, 303-307, 449-451, 457-459, 470, 482- 
488. 

Annexations. — Lalor, Cyclopaedia, i, 93-99, 111, 460-478; 
Mowry, Territorial Growth of the United States; Donaldson, The 
Public Domain, 89-145. 

The Government of the Continental Territories under 
Congress. — Bryce, American Commonwealth, i, Chap. XLVII; 
Roosevelt, Winning of the West, iii, Chap. VI; Cooley, Constitu- 
tional Law, 37, 38, 164-168; Ordronaux, Constitutional Legisla- 



THE CONTINENTAL TERRITORIES 267 

Hon, 509-519; Farrand, Legislation for Organized Territories; Black, 
Constitutional Law, 20, 21, 229-235; Hart, Contemporaries, iii, §§ 
46, 114, 135, 136; iv, §§ 17, 34, 42, 43, 186; American History 
Leaflets, Nos. 2, 17, 22, 32; Hill, Liberty Documents, Chap. XVI. 

The Territorial Policy of the Federal Government. — 
Lalor, Cyclopaedia, iii, 914-920; Judson, in Review of Reviews, 21 
(1900); 451-456; Harper's Monthly, 98 (1899): 319-328; Atlantic 
Monthly, 82 (1S98) : 735-742. 

The Northwestern Territory. — Hart, Formation of the 
Union, 107-109; Fiske, Critical Period, 187-199, 203-207; Hinsdale, 
Old Northwest; Ordinance of 1787, found in Appendix. 

The Government of Territories. — Cooley, Constitutional 
Law, 36, 37; Bryce, American Commonwealth, Chap. XLVII; Atlantic 
Monthly, 82: 735-742; Forum, 29: 257-262; North American Review, 
172: 1-22; Outlook, 68: 337-339. 

The Annexation of Texas. — Burgess, Middle Period, 295-301 ; 
Schouler, History of the United States, iv, 303-307; Benton, Thirty 
Years' View, ii, Chap. XXIV. 

Treaty of Guadalupe Hidalgo. — Text in MacDonald, 365-v 
372; H. von Hoist, United States, iii, 344-347; Wilson, Division, 
152, 153; American Historical Review, 1905. 

California before Admission. — Hittell, Histoid of California, 
vols. I and II; H. von Hoist, United States, iii, 284-308, 322-327, 
348-358, 385-397, 400, 401; H. von Hoist, Calhoun, 279-285; 
Burgess, Middle Period, 332-337, 340-344. 



CHAPTER X 

THE INSULAR DEPENDENCIES 

148. The Territory of Hawaii. — After the overthrow of 
the monarchy of Hawaii in 1893, a republican government 
was organized for the islands. Under this government, 
negotiations were carried on looking to the annexation of 
the islands to the United States. A treaty of annexation 
was formed and submitted to the Senate by President Harri- 
son. It was, however, withdrawn by President Cleveland. 
After the inauguration of President McKinley a new treaty 
was formed and sent to the Senate in June, 1897; but that 
body did not vote on it. There was a strong opposition to 
the treaty, and it was not certain that the Senate would give 
the required two-thirds vote in favor of confirming it. But 
there was a favorable majority in each house, and this was 
all that was required to pass a joint resolution of annexa- 
tion. After much discussion such a resolution was passed, 
and it was approved by President McKinley on July 7, 1898. 

This joint resolution established, in addition to other 
provisions, that, until Congress should provide for the gov- 
ernment of the islands, " all the civil, judicial, and military 
powers exercised by the officers of the existing government 
in said islands shall be vested in such person or persons and 
shall be exercised in such manner as the President of the 
United States shall direct, and the President shall have 
power to remove said officers and fill the vacancies so occa- 
sioned." 

268 



THE INSULAR DEPENDENCIES 269 

In April, 1900, Congress passed "An Act to Provide a 
Government for the Territory of Hawaii." This act fixed 
the capital at Honolulu. It declared all persons who were 
citizens of the Hawaiian Republic, August 12, 1898, to be 
citizens of the United States and of the Territory of Hawaii. 
It provided that the laws valid in the Territory of Hawaii 
should be, (1) the Constitution of the United States; (2) the 
laws of the United States except as otherwise provided; 
(3) the laws of Hawaii not inconsistent with the Constitution 
or lawsof the United States or the provisions of the Organic 
Act. It abolished " the offices of president, minister of for- 
eign affairs, minister of the interior, minister of finance, 
minister of public instruction, auditor general, deputy audi- 
tor general, surveyor general, marshal, and deputy marshal 
of the Republic of Hawaii," which had existed under the 
previous government. 

The law organizing the Territory of Hawaii established 
a legislature of two houses; the senate to be composed of. 
fifteen members, and the house of representatives of thirty 
members. It was provided that a general election should 
be "held on the Tuesday next after the first Monday in 
November, 1900, and every second year thereafter," and 
that all mature male persons should have the right to vote. 
The senators hold office for four years and the representa- 
tives for two years. The Territory is divided into four sen- 
atorial districts, four senators being elected from the first, 
three from the second, six from the third, two from the 
fourth. Representatives are elected from six districts, four 
from each of three districts and six from each of three 
others. It is provided in the organic act of the Territory 
of Hawaii that the legislature may create counties, and town 
and city municipalities, and provide governments for them. 

The executive power is vested in a governor, who is 
appointed by the President with the advice and consent of 
the Senate. There is also a secretary of the Territory. 



270 THE GOVERNMENT OF THE UNITED STATES 

Both the governor and the secretary are appointed for a 
period of four years. " In case of the death, removal, resig- 
nation, or disability of the governor, or of his absence from 
the Territory, the secretary shall exercise all the powers and 
perform all the duties of the governor during such vacancy, 
disability, or absence, or until another governor is appointed 
and qualified." The other officers provided for are an 
attorney-general, who in addition to his duties as attorney- 
general shall have certain of the powers and duties of the 
minister of the interior; a treasurer, who shall also have 
certain of the powers and duties of the minister of finance, 
as well as the powers and duties of the minister of the in- 
terior relating to a number of specified subjects; a com- 
missioner of public lands; a commissioner of agriculture; 
a superintendent of public works; a superintendent of 
public instruction; an auditor; a deputy auditor; a sur- 
veyor; and a high sheriff. 

The judicial power of the Territory is vested in one su- 
preme court, circuit courts, and such inferior courts as the 
legislature may from time to time establish. The supreme 
court shall consist of one chief justice and two associate 
justices, citizens of Hawaii, who are appointed by the Pres- 
ident of the United States. In addition to the Territorial 
courts already mentioned, there is established in the Ter- 
ritory a district court to consist of one judge, who is re- 
quired to reside in the Territory and is called the district 
judge. He is appointed by the President of the United 
States, and in connection with his court there is established 
a district attorney and a marshal of the United States for 
the district, each holding office for six years unless sooner 
removed by the President. In addition to the ordinary 
jurisdiction of district courts of the United States, this court 
shall have jurisdiction of all cases cognizable in a circuit 
court of the United States, and shall proceed therein in the 
same manner as a circuit court. The powers of the judge, 



THE INSULAR DEPENDENCIES 271 

district attorney, and marshal are such as are conferred by 
the laws of the United States upon the judges, district 
attorneys, and marshals of district and circuit courts of the 
United States. 

Topics. — The annexation of Hawaii. — Hawaii made a Terri- 
tory. — Laws valid in Hawaii. — The government of Hawaii: the 
legislative; the executive; the judiciary. — United States district 
court. 

References. — Hart, Actual Government, 344-346, 367, 374; 
An Act to Provide a Government for the Territory of Hawaii, passed 
in April, 1900. -■ ■•<■ 

149. The Government of Porto Rico. — Whenever in war 
an invader overthrows a general, provincial, or local govern- 
ment, " he shall take every step in his power to reestablish 
and secure, as far as possible, public safety and social order." 
In 1898 Porto Rico passed under the control of the United 
States and became the military department of Porto Rico. 
Over it was placed a military governor, who continued to be V 
the chief executive of this island until the Organic Act, 
approved April 12, 1900, was put in force on the first of 
May of that year. This act provided for a civil government 
to succeed the military government. This government 
consists of a governor, an executive council, a house of 
delegates, and a system of courts. The governor is ap- 
pointed by the President of the United States with the 
advice and consent of the Senate; and "he shall hold his 
office for a term of four years and until his successor is 
chosen and qualified, unless sooner removed by the Presi- 
dent." He has the ordinary powers of a Territorial execu- 
tive. He grants pardons and reprieves for offenses against 
the laws of Porto Rico, and respites for offenses against the 
laws of the United States, until the decision of the President 
can be ascertained. He is the commander in chief of the 
militia and shall at all times faithfully execute the laws. 



272 THE GOVERNMENT OF THE UNITED STATES 

The executive council is composed of a secretary, an 
attorney-general, a treasurer, an auditor, a commissioner 
of the interior, a commissioner of education, and five other 
persons, all of whom are appointed by the President for a 
term of four years. "In case of the death, removal, resig- 
nation, or disability of the governor, or his temporary 
absence from Porto Rico, the secretary shall exercise all 
the powers and perform all the duties of the governor during 
such vacancy, disability, or absence." The duties of the 
attorney-general are essentially the same as those provided 
by law for an attorney of a Territory of the United States. 
The executive council and another house called the house 
of delegates constitute "the legislative assembly of Porto 
Rico." Whatever local legislative power is granted by the 
Organic Act is held by the legislative assembly. The house 
of delegates consists of thirty-five members elected bienni- 
ally by the qualified voters. For the purpose of their elec- 
tion Porto Rico is divided into seven districts, composed of 
contiguous territory and as nearly equal as may be in popu- 
lation; and each district is entitled to five members of the 
house of delegates. 

The system of courts as at present organized includes 
police magistrates, municipal courts, district courts, a su- 
preme court, and a United States district court. 

Topics. — Transfer of Porto Rico from Spain to the United 
States. — The civil governor. — The executive council. — The secre- 
tary. — The attorney-general. — The house of delegates. — The system 
of courts. 

References.— Hart, Actual Government, 19, 344-346, 367; 
Rowe, Porto Rico, see Index. 

150. The Government of the Philippine Islands. — The 

Philippine Islands were brought under the authority of the 
United States by the Treaty of Paris, dated December 10^ 
1898. This treaty closed the war with Spain. The islands 



THE INSULAR DEPENDENCIES 273 

were at first controlled by the army directed by the Presi- 
dent through the Secretary of War. They were made a 
military division; and the commanding general of the 
division became, in the course of time, the military governor 
of the Philippines. In his double capacity as commanding 
general and military governor he directed both the military 
affairs and the civil administration of the islands. A few 
months after Manila was occupied by American troops, 
some of the inhabitants of the archipelago rebelled against 
the United States; and while this rebellion lasted, many 
provinces suffered great internal disorder. This confusion 
arose from the facts that the power of Spain was overthrown; 
that the political organization formed by the Filipinos failed 
to perform the proper functions of a government; and that 
the authority of the United States was acknowledged only 
within lines established by the army. 

When the bulk of the inhabitants had assumed a peaceful 
attitude toward the United States, the President made 
provision in the spring of 1900, for establishing civil govern- 
ment to succeed military rule. He appointed five com- 
missioners " to continue and perfect the work of organizing 
and establishing civil government, already commenced by 
the military authorities." On the seventh of April, 1900, 
he issued instructions to the Secretary of War 1 for the 
guidance of the commissioners in carrying out his purposes. 

The functions of the Commission are indicated in the fol- 
lowing extract from the President's instructions: "Begin- 
ning with the first day of September, 1900, the authority to 
exercise, subject to my approval, through the Secretary of 
War, that part of the power of government in the Philippine 
Islands, which is of a legislative nature, is to be transferred 
from the military governor of the islands to this commis- 
sion, to be thereafter exercised by them in the place and 

1 See Appendix, page 402. 



274 THE GOVERNMENT OF THE UNITED STATES 

stead of the military governor, under such rules and regu- 
lations as you shall prescribe, until the establishment of the 
civil central government for the islands contemplated in 
the last foregoing paragraph, or until Congress shall other- 
wise provide. Exercise of this legislative authority will 
include the making of rules and orders, having the effect of 
law, for the raising of revenue by taxes, customs duties, and 
imposts; the appropriation and expenditure of public funds 
of the islands; the establishment of an educational system 
throughout the islands; the establishment of a system to 
secure an efficient civil service; the organization and estab- 
lishment of courts; the organization and establishment of 
municipal and departmental governments, and all other 
matters of a civil nature for which the military governor 
is now competent to provide by rules or orders of a legis- 
lative character. 

" The Commission will also have power, during the same 
period, to appoint to office such officers under the judicial, 
educational, and civil-service system, and the municipal 
and departmental governments, as shall be provided for. 
Until the complete transfer of control the military governor 
will remain the chief executive head of the government of 
the islands, and will exercise the executive authority now 
possessed by him and not herein expressly assigned to the 
Commission, subject, however, to the rules and orders en- 
acted by the Commission in the exercise of the legislative 
powers conferred upon them. In the meantime, the munici- 
pal and departmental governments will continue to report 
to the military governor, and be subject to his administra- 
tive supervision and control, under your direction; but that 
supervision and control will be confined within the narrowest 
limits consistent with the requirement, that the powers of 
government in the municipalities and departments shall 
be honestly and effectively exercised, and that law and 
order and individual freedom shall be maintained." 



THE INSULAR DEPENDENCIES 275 

The second phase of the civil government of the Philip- 
pines was that in which the President acted under the 
authority conveyed by Congress in the amendment to the 
Army Appropriation Act, approved March 2, 1901, which 
provided that all military, civil, and judicial powers neces- 
sary to govern the Philippine Islands should be vested in 
such person and persons and should be exercised in such a 
manner as the President of the United States might direct. 

A third phase of the government was introduced, July 4, 
1901, by the appointment of a civil governor to take the 
place of the military governor. The president of the Com- 
mission was made civil governor; and the four other mem- 
bers, with the title of secretary, were made the heads of four 
executive departments. The executive power was vested 
in the governor assisted by the heads of the four executive 
departments. The legislative power was vested in the 
Commission composed of the governor, the four secretaries, 
and three Filipino members. The judiciary embraced a 
supreme court, a number of courts of first instance, munici- 
pal courts, and justices of the peace. The courts of first 
instance hold a position similar to that of the county court 
or the superior court of a State; and from them cases may 
be appealed to the supreme court of the archipelago. The 
judgments and decrees of this supreme court, in cases in- 
volving more than twenty-five thousand dollars, may be 
reversed, modified, or affirmed by the Supreme Court of the 
United States. 

The fourth phase of the government was introduced by 
the creation and organization of the Philippine Assembly, 
consisting of eighty members elected by popular vote under 
the election law enacted by the Commission, January 9, 
1907. This body held its first meeting, and was addressed 
by William H. Taft, Secretary of War, on October 16, 1907. 
The Commission as previously organized, but now with four 
Filipino members, formed the upper legislative body. It has 



276 THE GOVERNMENT OF THE UNITED STATES 

a right to initiate legislation, to modify, amend, shape, or 
defeat legislation proposed by the Commission; but the power 
to obstruct by withholding^ appropriations is taken away 
from the Assembly. If there is disagreement as to appropria- 
tions between the Commission and the Assembly, those of 
the previous year will be continued. Under the existing law 
of elections, the elections for members of the Assembly, for 
provincial governors, and for presidents of the municipalities 
are- held on the first Tuesday after the first Monday in 
November of the odd-numbered years. 

Topics. — Rebellion and internal confusion. — The United States 
Philippine Commission. — President McKinley's instructions. — 
Phases of the civil government. — Appeal to United States Supreme 
Court. — The Assembly. 

References. — Reports of the Philippine Commission, 1900, 1901, 
1902; Public Laws and Resolutions of the United States Philippine 
Commission. 

151. Municipal Government in the Philippines. — The 

existing municipal governments in the Philippine Islands 
were established under " A General Act for the Organization 
of Municipal Governments in the Philippine Islands," 
passed by the Commission, January 31, 1901. This act was 
not made applicable to the city of Manila, nor to the villages 
of certain wild tribes. The government of each municipal- 
ity established under this act consisted of a president, a 
vice president, and a municipal council. These officers are 
elected; and the voter for them must be at least twenty- 
three years of age and a resident of the municipality for a 
period of six months immediately preceding the election, 
not a citizen or subject of any foreign power, and must be 
included in one of the following classes: 

(1) Those male persons who, prior to the thirteenth of 
August, 1898, held a municipal office; (2) those male persons 
who own real property to the value of 500 pesos, or who 



THE INSULAR DEPENDENCIES 277 

annually pay 30 pesos or more of the established taxes; 
(3) those male persons who speak, read, or write English or 
Spanish. 

Topics. — The general Municipal Government Act. — Officers of 
the town. — Voters and the basis of suffrage. 

References.— Public Laws of the United States Philippine Com- 
mission, No. 82: The Municipal Code. 

152. The Government of Manila. — The government of 
Manila was suggested by the government of Washington. 
Section 4 of the charter as originally adopted by the Com- 
mission provided for a municipal board, consisting of three 
members appointed by the Civil Governor, by and with the 
consent of the Commission. This charter was amended June 
18, 1908, after the organization of the Philippine Assembly. 
Under the amended charter the municipal board consists of 
six members, three to be appointed by the Governor-General, 
by and with the consent of the Commission, an ex-officio 
member, the engineer, and two elective members from the 
city of Manila, who shall hold office for two years or until 
their successors are elected (or appointed) and qualified. 

One member of the board is designated in the appoint- 
ment by the Governor-General as president. The president 
shall preside at meetings of the board, shall sign all ordi- 
nances, resolution's, bonds, contracts, and obligations made 
or authorized by the board, and shall issue orders necessary 
to enforce the ordinances of the city. Elections for elective 
members of the municipal board are held on the first Tues- 
day after the first Monday in November of each odd-num- 
bered year, and the persons elected are required to take 
office on the first day of January next after their election. 

There is also a secretary of the municipal board who 
is appointed by the municipal board, subject to the pro- 
visions of the Civil Service Act. There is also a disbursing 
officer of the board, who is " charged with the duty of dis- 



278 THE GOVERNMENT OF THE UNITED STATES 

bursing all moneys drawn from the insular treasury pur- 
suant to appropriations made by the Commission." 

The municipal board of the city of Manila exercises both 
legislative and executive authority. Its executive power 
is exercised "through the following departments, and by 
general supervisory control over the same: (1) Department 
of Engineering and Public Works; (2) Police Department; 
(3) Law Department; (4) Department of Fires and Public 
Inspection; (5) Department of Assessments and Collections." 
The heads of these departments, assistant heads, and all 
superintendents therein are appointed by the civil governor 
by and with the consent of the Commission. 

The insular auditor audits the city accounts; the 
insular treasurer keeps the money of the city; the insular 
purchasing agent makes purchases for the city; the insular 
board of health makes provision for the health of the city; 
the insular prison, Bilibid, receives the city prisoners; and 
the general superintendent of public instruction exercises 
the same jurisdiction and powers in the city of Manila as 
elsewhere in the archipelago. 

Topics. — Model for government of Manila. — The officers and 
their duties. — Powers of the municipal board. — Departments under 
it. — Connection with the Insular Government. 

References. — Public Laws of the United States Philippine 
Commission, No. 183 : An Act to Incorporate the City of Manila. 

153. The Provincial Government. — The Insular, or cen- 
tral, Government exercises authority over the whole archi- 
pelago. The authority of the Municipal Government is 
confined in each case to the territory of the township or 
municipality. Between these two lies the government of 
the province. The governments of this class were organized 
under the Provincial Government Act, enacted in Manila in 
February, 1901. In accordance with this act the Provincial 
Government consists of five officers. These are a governor, 



THE INSULAR DEPENDENCIES 279 

a supervisor, a treasurer, an attorney, and a secretary. 
The governor, the supervisor, and the treasurer of the 
province constitute the provincial board. The governor is 
elected by a provincial assembly, or electoral college, com- 
posed of the members of the town councils of the organized 
municipalities of the province. The supervisor is required 
to be a civil engineer, since upon him falls the business of 
building roads and bridges and the other public works of the 
province. The supervisor and the treasurer are in the 
classified civil service, and are appointed by the civil 
governor of the archipelago. 

In the government of the Philippine Islands there are 
two groups of elected officers. The first group consists of 
the municipal officers, who are chosen at large by the quali- 
fied electors of the municipalities. The second group of 
elected officers consists of the governors of the several 
provinces, who in each case are elected by the provincial 
assembly. The provincial assembly is composed of the 
members of the town councils of the various towns in the 
province. The second election thus depends on the first, 
and the first is made by the restricted list of voters who 
participate in the municipal elections. 

Topics. — The Provincial Government Act. — Officers of the 
Provincial Government. — Elections in the Philippines. 

References. — Public Laws of the United States Philippine 
Commission, No. S3 : The Provincial Government Act. 

FOR ADVANCED STUDY 

The Government of Dependencies. — Lewis, The Govern- 
ment of Dependencies; Reinsch, Colonial Government; Harvard Law 
Review, xii, 365-416. 

The Government of Porto Rico. — Reports of the Governor of 
Porto Rico; Rowe, The United States and Porto Rico; Forum, 28: 
257-267, 403-411; 30: 717-721; North American Review, 172: 
1-22. 



280 THE GOVERNMENT OF THE UNITED STATES 

Civil Government in the Philippines. — Reports of Philip- 
pine Commission, 1900, 1901,1902; Outlook, 71 (1902): 305-321; 
North American Review, 175 (1902): 299-308. 

Decisions in the "Insular Cases." — Outlook, 68 (1901): 
337-339, 175 (1901): 962-965; North American Review, 173 (1901): 
145-153, 577-593; Rowe, The United States and Porto Rico, 39-82. 

Educational Policy of Philippine Government. — First 
Annual Report of Secretary of Public Instruction, in Report of Philip- 
pine Commission, 1902, ii, 867-902; International Quarterly, 9: 1-15. 

Land Policy of the United States. — McMaster, History of 
the United States, ii, 476-478; iii, 89-121; Schouler, History of the 
United States, i, 97-101, 198, 199; ii, 84, 85; iii, 191, 192; iv, 66-68, 
152-156; Donaldson, The Public Domain. 



CHAPTER XI 

THE GOVERNMENT OF THE STATES 

154. Federal and State Governments. — The Federal 
Government represents the nation in foreign affairs. The 
Federal Government speaks to the governments of other 
nations and receives from them whatever communication 
they may wish to make to it. Both the Federal and the 
State governments exercise legislative, executive, and 
judicial powers; both enact laws which affect the individual 
citizens directly; both enforce these laws without the in- 
tervention of any officers except those who belong to their 
several administrative systems; and both hear and decide 
cases in courts. But the Federal Government alone repre- 
sents the nation in international affairs. Every sovereign 
nation has a central national government, and every sover- 
eign nation has a certain form of local government which 
performs some of the functions of the State governments; 
but few nations possess district governments that have 
attained the same degree of individuality and importance 
as the State governments of the United States. The can- 
tons of Switzerland and the subordinate states in the German 
Empire present the closest parallel. 

In the early history of the United States it was thought 
that greater honor and dignity attached to offices in the 
State than to offices in the Federal Government. Certain 
conditions, such as the separate origin and strong individ- 
uality of the colonies, indicated the probability of a con- 
19 281 



282 THE GOVERNMENT OP THE UNITED STATES 

tinued growth of this sentiment. The relative importance 
and the individuality of the State were strengthened by the 
difficulty of communication between the States; but the 
events of the later history of the country, which have con- 
firmed and exalted the national Government, have changed 
the popular estimation of the two governments. Persons 
seeking important places in the public service are not dis- 
posed now, as they were formerly, to resign a position under 
the Federal Government to take a State office. At present 
the highest office of the State is often considered a stepping- 
stone to a desired Federal office. A growing national sen- 
timent has magnified the public estimate of the Federal 
Government. Professor Bryce says, "The State set out 
as an isolated and self-sufficing commonwealth. It is now 
merely a part of a far grander whole, which seems to be 
slowly absorbing its functions and stunting its growth, as 
the great tree stunts the shrubs over which its spreading 
boughs have begun to cast their shade." 

Topics. — The Federal Government and foreign affairs. — 
Central and local government. — Relative importance of State and 
Federal offices. 

References. — Bryce, American Commonwealth, i, 537; in gen- 
eral, Chaps. XXXVI-XLVI; Hart, Actual Government, see Index 
under State Government; Cooley, Constitutional Law, 32. 

155. The State in the American Union and Its Functions. 

— The State in the American Union is a subordinate political 
body. It possesses all the essential forms of the national 
Government except those designed for maintaining relations 
with foreign powers. Its organization embraces a con- 
stitution adopted by the direct vote of the people, a gov- 
ernor and other executive officers, a legislature of two houses, 
a system of local governments in counties, cities, townships, 
and school districts. It may establish a system of taxation; 
it may contract debts; it may form a system of laws cover- 



THE GOVERNMENT OF THE STATES 283 

ing the law of real and personal property, of contracts, of 
torts, 1 and of family relations. It may adopt a code of 
judicial procedure; it may establish a system of courts for 
the trial of cases arising under State law as distinctive from 
the Federal Constitution and the laws enacted by Congress. 
It may prescribe the conditions under which a person may 
be admitted to active citizenship or to the enjoyment of 
political rights in the nation. The Federal Government 
does not fix the conditions which must be fulfilled by those 
persons who would vote for members of Congress or other 
elective officers. It accepts the conditions fixed by each 
State. Any person who is by law permitted to vote in 
State elections may vote in congressional or presidential 
elections. The only restrictions on the power of the State 
in this matter are those contained in the fourteenth 
and fifteenth amendments to the Federal Constitution. 
The principal purpose of these limitations was to enable 
the Government to carry out its determination to give the 
negroes, recently in slavery, the same political rights that 
were enjoyed by the other citizens of the several States. 
The extent of the State's authority over its subordinate 
communities is complete. This is indicated by the fact 
that a municipality is an organized body, and that the char- 
ter of a municipality is an act passed by a State legislature 
and may be repealed or modified at the will of the legis- 
lature. 

The functions of a State government and of all subor- 
dinate institutions of a State are limited by the rights of the 
Federal Government. Thus a State cannot declare war 
or make peace, or form a treaty, or make an alliance, with 
a foreign power; or regulate interstate commerce. Cities, 
counties, and towns organized as corporations in a State 
"are never intrusted and can never be intrusted with any 

1 Wrongful acts on account of which civil action may be brought. 



284 THE GOVERNMENT OF THE UNITED STATES 

legislative power inconsistent or conflicting with the general 
laws of the land, or derogatory to those rights either of per- 
sons or of property which the Constitution and the general 
laws guarantee. They are strictly subordinate to the general 
laws, and are created merely to carry out the purposes of 
those laws with more certainty and efficiency." Recent 
State constitutions have, moreover, laid somewhat narrow 
restrictions on the actual governments, particularly on the 
legislatures, of the States. While it is possible for the 
Federal Government to deal directly with the persons and 
the affairs of the individual citizens, it is nevertheless the 
State government that concerns itself more immediately 
with the individual citizen's interests. It is the State, in 
the exercise of its police powers, that citizens rely upon 
for the protection of their lives, health, comfort and 
property. 

The State creates the corporations through which the 
bulk of modern industrial affairs are carried on, as well as 
the corporations instituted for the purposes of local govern- 
ment. By this activity it calls into being the two most 
powerful influences that affect the life of modern society. 
But the function of the State is not limited to the creation 
of corporations; it may also control them. In this there 
are presented opportunities for wise and beneficent action 
on the part of the officers of the State, as well as oppor- 
tunities for corruption and the display of baneful folly. 
The State may not only create a corporation, but it may 
even prescribe the manner in which the corporation shall 
perform its work. "In the case of railroads, they are 
usually constructed and maintained by private capital, 
but they possess public functions which render them 
subject to State regulation, apart from such regula- 
tions as the public safety requires. To secure safety the 
State may regulate the grade of the road and the man- 
ner of crossing other roads; it may prescribe the signals 



THE GOVERNMENT OF THE STATES 285 

to be given at dangerous places; it may compel the road 
to fence in its tracks, and it may regulate the speed of 
trains." 

But it may happen that a corporation created by a State 
will in the course of time extend its interests and its opera- 
tions over two or more States. In this case it is evident 
that the regulating power of the State that created the 
corporation is confined within the State's limits. This has 
happened in the case of railroad corporations; and the 
inability of any State to render the control demanded by 
the circumstances led to the creation of the Interstate 
Commerce Commission as an arm of the Federal Govern- 
ment. 

It is, moreover, to the State that the bulk of the in- 
habitants look for the means of education. The State 
maintains the public schools. The State establishes and 
supports institutions for the care of the feeble-minded and 
the insane. The national Government, wishing trained . 
officers for the army and the navy, makes provision for their 
education at West Point and Annapolis. But generally 
the assistance of the Federal Government in the work of 
education has been rendered in the form of land grants to 
States. The State touches the individual at more points 
than does the Federal Government. 

The administration of the affairs of the common schools, 
in the majority of the States, engages the services of a State 
executive officer — namely, the superintendent of public 
instruction — and subordinate superintendents of counties 
and cities, together with State, county, and city boards of 
education. These officers are put in the positions they hold 
by various methods of v election and appointment. The 
system of public instruction as carried out in many of the 
States embraces primary, intermediate, and high schools; 
a State university; and State, county, and city normal 
schools. 



286 THE GOVERNMENT OF THE UNITED STATES 

Topics. — Main features of a State government. Limitation of 
State action: by Federal authority; by the State constitution — 
The extent of State power. — Interstate Commerce Commission. — ■ 
The State and education. 

References. — Bryce, American Commonwealth, \, 310, 320, 
400-505; Hart, Actual Government, 114-126; Lalor, Cyclopaedia, hi, 
800-812; Ford, American Citizen's Manual, Part II, 76. 

156. Antecedents of State Constitutions. — Each State in 
the Union has an organization similar in many respects to 
that of an independent nation. Like Switzerland, France, 
the German Empire, or the United States, it has a con- 
stitution or fundamental law which prescribes the organiza- 
tion of the several departments of government and conveys 
to each department the power to be exercised by it. The 
State constitution holds essentially the same relation to the 
State legislature that the Federal Constitution holds to 
Congress. It is above the legislature and cannot be 
amended or modified by that body. It is adopted by the 
direct vote of the electors of the State, and they alone can 
amend or repeal it. All State statutes which are found to 
be in opposition to its provisions are invalid. It is the 
direct successor of the colonial charter; and the colonial 
charters in force at the beginning of the War of Independ- 
ence had their legitimate ancestors in the charters granted 
to the merchant guilds and trading companies of early 
Europe. The trading company's charter grew into a con- 
stitution under the necessity of making more extensive 
provisions for political control. When the bond was 
severed which bound the English colonies in America to 
the Crown, the power to modify the charter of any one of 
these colonies fell, in accordance with the theory of popular 
government announced in the Declaration of Independence, 
into the hands of the people of the colony. The trading 
company grew into circumstances where it was obliged to 



THE GOVERNMENT OF THE STATES 287 

exercise political power; and the charter, modified from 
time to time, conferred this power. The company grew 
into the colony and the colony into the State. 

Topics. — Position of State constitution. — Its line of descent. 

References. — Bryce, American Commonwealth, i, 27, 413, 
458; Hart, Actual Government, 46-48; Fiske, Civil Government, 
167-172. 



157. The Formation of a State Constitution. — A State 
constitution is a law adopted by the voters of the State. In 
case the State is already organized, the voters decide whether 
the constitution shall be revised as a whole or only amended 
in certain parts. The initiative in presenting this question 
to the voters is taken by the legislature. The reformed 
constitution is usually framed by a convention. A con- 
vention elected by popular vote for this purpose has no 
power to establish the constitution as an authoritative law. 
When the draft of the proposed constitution has been com- 
pleted by the convention, it is submitted by that body to 
the voters. The convention is then dissolved. It is not 
convenient to bring all the voters of the State together in 
one place to vote, as is done in a number of the Swiss cantons 
or as was formerly done in the ancient Teutonic tribes. 
The question of adopting or rejecting the proposed con- 
stitution is therefore submitted to the voters at their 
ordinary places of voting. They usually vote to adopt or 
reject the draft as a whole, but sometimes provision is made 
to enable them to accept some parts and to reject other 
parts. The constitution of a State is thus a fundamental 
law adopted directly by the voters of the State; and, 
following the same course of procedure, it may be amended 
by them at any time. 1 

1 See §§ 146, 160. 



288 THE GOVERNMENT OF THE UNITED STATES 

Topics. — The initiative in making or revising a State consti- 
tution. — The convention. — Method of procedure. — Character of 
State constitution. 

References. — Bryce, American Commonwealth, i, 418, 419, 
662-664, 456; Hart, Actual Government, 59-63. 

158. Growth of State Constitutions. — We may note 
three periods in the growth of State constitutions. The 
first period embraces the early history of those constitu- 
tions that were inherited from the colonies and were modi- 
fied to suit the new conditions, and those that were framed 
under influences proceeding from the struggle for independ- 
ence. The colonies had revolted against the arbitrary 
power of the king; and in modifying their charters or in 
forming new constitutions they sought to avoid placing 
much power in the hands of one man, whether as a civil 
executive or as a military officer. The people of the original 
States favored the legislature and feared the executive. 
In most of the States the governors were elected by the 
legislatures. They were checked in their authority by a 
council, but they had no part in creating this council. They 
had no power to veto the acts of the legislature, and the 
right enjoyed by the royal governors during the colonial 
period to adjourn or dissolve the legislature disappeared 
with England's authority. The voters had not asserted 
their claim to direct interference in the affairs of government, 
and at that time government by the people seemed to mean 
government by the legislature. This first phase in the 
history of State constitutions belongs to the period ending 
with the first decade of the nineteenth century. 

The second phase in the growth of State constitutions 
appears in the period of fifty years immediately preceding 
the Civil War. This was the period when the people were 
becoming more and more democratic. The social tradi- 
tions and practices derived from England were modified by 



THE GOVERNMENT OF THE STATES 289 

the spirit of equality; and this spirit was fostered by the 
equality of material conditions that prevailed among the 
people of the early States, who were devoted almost ex- 
clusively to agriculture. The most striking changes in 
this period were: (1) That the relics of the connection be- 
tween the Church and the State were swept away; (2) that 
the practice of adopting State constitutions by direct popular 
vote was established; (3) that it became customary to have 
the governor elected by the people instead of by the legis- 
lature; (4) that the suffrage was greatly extended, and 
property qualifications were abolished; (5) that many 
judges heretofore appointed became elected. 

The third phase of this growth belongs to the period 
since the Civil War. The changes observed in this period 
tend to strengthen the position of the executive and judi- 
ciary departments of the State government. The governor 
is given a limited veto on acts passed by the legislature; 
his term of office is somewhat lengthened; and restrictions 
on reeligibility are removed. The salaries of the judges 
have been increased; their terms of office lengthened; and 
a strong opinion has appeared in favor of their appoint- 
ment by the executive and in opposition to their election 
by the people. At the same time important restrictions 
have been placed on the legislature, while the people have 
legislated directly on many subjects through provisions in- 
troduced into the State constitutions. 

Topics. — First period in growth of State constitutions. — Consti- 
tutional provisions of first period. — Second period. — Characteristics 
of second period. — Third period. — Changes effected in third period. 

References. — Bryce, American Commonwealth, i, 434-440; 
Fiske, Civil Government, 195-208; Hitchcock, American State Con- 
stitutions, 1-60. 

159. State Constitutions Restrictive. — Any provision of 
a State constitution, as well as a law passed by Congress, is 



290 THE GOVERNMENT OF THE UNITED STATES 

invalid if found to be in conflict with the Federal Constitu- 
tion. Moreover/ the constitution of a State limits the 
power of the State legislature so that a law passed by that 
body is invalid if found to be in conflict with the State 
constitution. The question as to whether there is or is not 
conflict is determined by the courts in adjudicating causes 
actually brought for trial. In considering the constitu- 
tionality of a Federal law, it is important to inquire whether 
necessarily the Federal Constitution conveys to the Congress 
authority for making the law in question. In considering 
the constitutionality of a State law, it is important to in- 
quire whether the State constitution has prohibited the 
legislature from enacting the law in question. The Federal 
Constitution is a grant of powers. The State constitution 
is a limitation of powers which, without the limitation, are 
presumed to exist. This principle is clearly set forth in the 
decisions of the courts: 

"It has never been questioned that the American legis- 
latures have the same unlimited power in regard to legis- 
lation which resides in the British Parliament, except where 
they are restrained by written constitutions. That must 
be conceded to be a fundamental principle in the political 
organization of the American States. We could not well 
comprehend how, upon principle, it could be otherwise. 
The people must, of course, possess all legislative power 
originally. They have committed this in the most general 
and unlimited manner to the several State legislatures, 
save only such restrictions as are imposed by the Constitu- 
tion of the United States or of the particular State in 
question." "The people, in framing the constitution [of 
the State], committed to the legislature the whole law- 
making power of the State which they did not expressly 
or impliedly withhold. Plenary power in the legislature 
for all purposes of civil government is the rule. Prohibition 
to exercise a particular power is an exception." 



THE GOVERNMENT OF THE STATES 291 

Topics. — Restrictions on State constitutions and State laws. — 
Restrictions on State legislatures. 

References. — Cooley, Constitutional Limitations, 108; Hart, 
Actual Government, 315-319; Hitchcock, American State Constitu- 
tions, 35; Miller, Lectures, 577. 

160. Direct Legislation Through State Constitutions. — 

In the canton of Appenzell in Switzerland, the people as- 
semble in a common place of meeting to elect officers and 
adopt laws for the canton by direct vote. Under certain 
conditions the direct vote of the people of Switzerland is 
applied also to the passage of federal laws. The federal 
legislature formulates, approves and proposes laws; and, 
if it is demanded by a sufficient number of voters, they are 
fhen submitted to the people, who vote on them in the 
several cantons. This practice of referring laws to the 
people, to be finally adopted by direct popular vote, is 
called referendum, a term which may be defined as the right 
of the people, by direct vote, to accept or reject certain acts 
that have been passed by the regular legislative body. In 
the formation of a State constitution the practice is similar 
to that of the referendum. The draft of the constitution is 
formulated by a representative body called a convention 
and is then submitted to the voters for adoption. 1 By in- 
troducing into the draft or by inserting into amendments 
matters that properly belong to statutes, there is carried 
out a system of direct legislation by the people. Therefore, 
in amending the constitution the practice is essentially that 
of the referendum, since the amendment is formulated, dis- 
cussed, and approved by the legislature before it is sub- 
mitted to the people. The State constitution sometimes 
provides that certain questions shall be submitted to the 
voters of the State for final decision. In Minnesota a 

1 See §157. 



292 THE GOVERNMENT OF THE UNITED STATES 

certain class of railway laws might not take effect until 
they had been approved directly by the voters; and in the 
same State "moneys belonging to the internal improvement 
land fund shall never be appropriated for any purpose till 
the enactment for that purpose shall have been approved 
by a majority of the electors of the State, voting at the 
annual general election following the passage of the act." 
This system of direct legislation has certain merits. It 
interests the people in the questions presented to them and 
tends to give them information on important public matters. 
On the other hand, it may be said that it detracts from the 
authority of the legislature, weakens its sense of responsi- 
bility, and thus hinders improvement in the character of 
that body. 

Topics. — The referendum in Switzerland. — Similarity of method 
in making a State constitution. — Direct legislation. — Merits of the 
system. — Objections. 

References. — Bryce, American Commonwealth, i, Chap. 
XXXIX; ii, 316; Hart, Actual Government, 78-84. 



161. The People and the Government. — In the growth 
of popular government there has hitherto been observed a 
tendency on the part of the people gradually to come nearer 
the actual control of public affairs. This is manifested in 
the extension of the suffrage, in the demand that laws be- 
fore becoming valid shall be submitted to a popular vote, 
and in the increasing number of provisions that are intro- 
duced into the more recent State constitutions and voted 
on by the people. A comparison of a recent voluminous 
State constitution with the succinct Constitution of the 
United States will show to what extent the State constitu- 
tion has been made to embrace topics properly belonging 
to administrative law. In this the voters manifest a wish 
to limit the authority of the legislature by introducing into 



THE GOVERNMENT OF THE STATES 

the constitution itself matters which, in any proper separa- 
tion of functions, would be assigned to the legislature rather 
than to the direct vote of the people. The people appear to 
regard the government which they themselves have con- 
stituted with a suspicion somewhat like that with which the 
people of England once regarded the king; and through 
the modern State constitutions they have given a more or 
less distinct expression of this sentiment, and have at- 
tempted to guard themselves against the encroachments of 
the regularly constituted authorities. 1 

Subject to the limitations contained in the fourteenth 
and fifteenth amendments to the Federal Constitution, the 
State fixes the condition of voting in both national and 
State elections. The qualifications for voters in Federal 
elections are those fixed in each of the several States for 
voting for members of the lower house of the State legis- 
lature. Voters in Federal elections in different States have, 
therefore, not necessarily the same qualifications; but the 
variations are insignificant. 2 Everywhere the people have 
been endowed with a common democratic spirit which has 
found expression in State institutions that are essentially 
uniform. All the States have practically universal man- 
hood suffrage. In eight States no pauper can vote; in 
Rhode Island there is still a property qualification; and four 
States — Delaware, Massachusetts, Pennsylvania, and Ten- 
nessee — require the payment of some State or county tax. 
Massachusetts, Connecticut, and California have a certain 
educational test — the ability to read the Constitution. 
With regard to suffrage, as with regard to legislation by 
popular vote, there are many persons in the nation who are 
disposed to go to the democratic extreme. In the one case 
it is the advocacy of the referendum; in the other, the 
advocacy of woman suffrage. 

1 See §163. 2 See §136. 



294 THE GOVERNMENT OF THE UNITED STATES 

Topics. — Popular desire for immediate control of the Govern- 
ment. — Extension of suffrage, referendum, legislation in State 
constitutions. — Suffrage in the States. 

References. — Hart, Actual Government, 66-71, 125; Fiske, 
Civil Government, 173-183; Bryce, American Commonwealth, i, 
427, 446, 451. 

162. The State Legislature. — The main institutions of 
the State and of the Union are framed under the influence 
of a common ideal, and consequently have many similar 
features. Each has a chief executive, a body of executive 
officers, a legislature of two houses, a supreme court, and 
a system of inferior courts. Three States — Pennsylvania, 
Georgia, and Vermont — had, for a few years, legislatures of 
one house each. Georgia adopted the two-house system in 
1789, Pennsylvania in 1790, and Vermont in 1836. The 
members of the two houses are chosen by popular vote, each 
in a senatorial or house district, as the case may be. A 
senatorial district is larger than a house district, and the 
senate is a correspondingly smaller body than the house. 
The senators generally hold for longer terms than the as- 
semblymen or representatives. In half of the States they 
hold for four years, in about a quarter of the States they 
hold for two years, and in the rest for one or three years. 
The State senate, like the United States Senate, is only par- 
tially renewed at anyone time; while the lower house, like 
the Federal House of Representatives, is wholly renewed 
at the end of each period for which the members are elected. 

The most conspicuous restriction on the election of 
members to either the State or the national Legislature is 
that they shall reside in the districts for which they are 
severally elected. This restriction, whether by law or by 
custom, has been seriously criticised as making the area of 
choice smaller and consequently causing inferior men to be 
chosen. 



THE GOVERNMENT OF THE STATES 295 

What has been said about the method pursued in Con- 
gress in making laws indicates in a general way the process 
in the State legislatures. Writing the bill in the proper 
form is the first step. When written it must contain only 
one subject, and this subject must be indicated in the title. 
The bill is introduced by a member, and after it has been 
read either in full or by title it is referred to a committee. 
The committee considers the bill carefully, listens to ar- 
guments in favor of it as well as to arguments against it, 
and finally either reports it to the house to which the mem- 
bers of the committee belong, or allows it to remain with the 
committee. In the house to which it is reported it is dis- 
cussed and voted on. If the required majority vote for it, 
the presiding officer signs it, and it is then sent to the other 
house. There it is treated in a similar manner; and, if 
passed, it is sent to the governor. The governor has a 
definite period, fixed by law, of ten days or more in which to 
decide whether he will sign it or not. There are several 
ways by which the bill may now become a law: (1) The gov- 
ernor may sign it; (2) he may veto it, and it may be passed 
over his veto by the required majority of each house; (3) he 
may neglect to sign it or veto it, during the period allowed 
him to consider it, when it becomes a law without further 
action. 

Topics. — Similar features in State and national institutions. — 
Terms of State senators. — Residence in district represented. — Proc- 
ess of making laws in a State. 

References. — Bryce, American Commonwealth, i, 95, 98, 222, 
418, 420, 468-470; Hart, Actual Government, 128-139; Fiske, Civil 
Government, 170-188, 255-258. 

163. Restrictions on State Legislation. — While the gov- 
ernor has no right to dissolve or adjourn the legislature, 
in all but four States he has the right to veto. This right, 
however, like that exercised by the President, is only the 



296 THE GOVERNMENT OF THE UNITED STATES 

right of a limited veto. In some States an act may be passed 
over the governor's veto by a majority of three-fifths of each 
house, and in other States by a majority of two-thirds of 
each house, and in still others by a simple majority of all 
the members elected. Against the possible unwisdom or 
misdirected self-interest of the many members of the legis- 
lature, there is a disposition on the part of the people to 
rely on the wisdom, impartiality, and comprehensive view 
of the governor. On occasions when the people find their 
well-being threatened, they often turn instinctively to some 
one person, hoping to find him willing and able to be their 
champion. Modern democracy has not entirely obliterated 
the disposition of the members of the tribe to look to the 
tribal chief for their protection. 

A second form of restriction appears in the exclusion of 
certain specified subjects from legislative competence. The 
legislatures are prohibited by the State constitutions in 
their more recent forms from making laws of local or spe- 
cial application on a large and increasing number of 
subjects. 

A third form of restriction relates to legislative pro- 
cedure. This restriction makes provision concerning the 
majorities necessary to pass certain bills — whether the 
majority required in any given case shall be a majority of 
the members present, a majority of all elected, or a pre- 
scribed part of this number. It makes stipulations con- 
cerning the method of taking and recording votes. It 
specifies the intervals required to elapse after each reading 
of a bill before its last reading and a final vote on it. It 
prescribes that a bill shall include only one subject, and that 
this subject shall be expressed in the title. 

A fourth form of restriction is found in the division of 
the legislature into two houses. If a bad law passes one 
house without becoming sufficiently well known to provoke 
popular opposition, it is expected that the delay necessary 



THE GOVERNMENT OF THE STATES 297 

before it is brought to vote in the other house will furnish 
an opportunity to rouse a sentiment against it, either by 
discussion among the people or by debate in the house 
itself. 

Another and fifth restriction on legislation consists in 
limiting the number of days on which the legislature is 
authorized to sit or for which the members may receive pay. 
Making the sessions biennial instead of annual is a move- 
ment toward the same end. Only six States adhere to the 
earlier general practice of annual sessions. 

. Topics. — Restrictions of State legislation: 1. Governor's veto; 
2. Constitutional exclusion of certain subjects from legislative 
power; 3. Required majorities in certain cases, specified inter- 
vals between readings of bills, limitation of a bill to one subject; 
4. Existence of two houses; 5. Limitation of time of sessions. 
Reference. — Bryce, American Commonwealth, i, 427, 470. 

164. State Taxation. — Generally speaking, the Federal 
Government raises its revenues by indirect taxation, while 
the State relies almost entirely on direct taxation. The 
Federal Government derives the bulk of its funds from 
customs duties; while the State, forbidden to impose cus- 
toms duties, derives- the main part of its revenues from 
taxes levied on real and personal property. Local officials, 
called assessors or appraisers, acting under the direction of 
the State law, make lists of all taxable property within their 
several districts and fix a valuation for each piece of such 
property. If a high value is fixed, the people of the town 
or the county are obliged to pay a proportionately large 
part of the taxes. The assessor, who is a locally elected 
officer, is, therefore, moved by various considerations to 
make the valuation low; but in order that the valuation 
may be made sufficiently high and uniform throughout 
the State, a board of equalization is appointed with power 

to raise or lower the valuation fixed by the local assessors. 
20 



298 THE GOVERNMENT OF THE UNITED STATES 

County boards of equalization also are created, whose duty 
it is to equalize the valuations made by the local assessors 
in the several towns of their respective counties; but the 
most efficient board of equalization does not prevent the 
existence of great inequalities in the burdens of taxation, 
owing to the ease of discovering certain kinds of property 
and the difficulty of discovering other kinds. It is easy to 
make a list of all the houses and lands in the town or the 
State, but it is very difficult to make a list of all the notes 
and bonds that are owned in the town or the State ; and for 
this reason two persons owning equal amounts of property 
of different kinds may pay very unequal amounts of taxes. 
Taxes are paid on all property in lands and buildings be- 
cause they can be easily found and assessed, but taxes are 
paid on only a part of personal property because it can 
be readily concealed. Besides the property that escapes 
taxation because of its fraudulent concealment by the own- 
ers, there is also a large amount on which no taxes are 
paid because it is by law exempted. This amount varies 
in accordance with the exemption laws of the several States. 
California exempts from taxation very little property except 
such as belongs to the Government, and at one time em- 
braced in the list of taxable property even churches and 
other institutions not belonging to the State; while many 
other States have exempted educational, charitable, sci- 
entific, literary, and agricultural institutions, as well as 
churches and libraries not owned by the State. 1 

1 The constitution of California, Article 13, Section 9, contains the 
following statement concerning the boards of equalization: "A State 
board of equalization, consisting of one member from each congressional 
district in this State, as the same existed in eighteen hundred and 
seventy-nine, shall be elected by the qualified electors of their respective 
districts, at the general election to be held in the year one thousand 
eight hundred and eighty-six, and at each gubernatorial election there- 
after, whose term of office shall be for four years; whose duty it shall 
be to equalize the valuation of the taxable property in the several 



THE GOVERNMENT OF THE STATES 299 

Topics. — Source of State revenue. — Levying taxes.- -The as- 
sessor. — Board of equalization. — Inequalities in the burdens of 
taxation. — Property escaping taxation. — Kinds of property exempt. 

References. — Bryce, American Commonwealth, i, 490-504; ii, 
393; Cooley, Constitutional Law, 60; Hart, Actual Government, 408, 
Chap. XXII. 

165. The Governor. — The executive head of the State is 
called the governor. His office has been continued down 
to the present from the colonial period of our history, and it 
was the model on which the makers of the Federal Constitu- 
tion formed the office of President. He is elected by the 
voters who elect the members of the State legislature, and 
the period for which he is elected varies in the different 
States from one to four years. This period is either two or 
four years in a large majority of the States. 

While the President is surrounded by a body of advisers 
of his own appointment, the governor has no cabinet or 

counties of the State for the purposes of taxation. The controller of the 
State shall be ex officio a member of the board. The boards of super- 
visors of the several counties of the State shall constitute boards of 
equalization for their respective counties, whose duty it shall be to 
equalize the valuation of the taxable property in the county for the 
purpose of taxation ; 'provided, such State and county boards of equali- 
zation are hereby authorized and empowered, under such rules of notice 
as the county boards may prescribe as to the action of the State board, 
to increase or lower the entire assessment roll, or any assessment con- 
tained therein so as to equalize the assessment of the property contained 
in said assessment roll, and make the assessment conform to the true 
value in money of the property contained in said roll; provided, that 
no board of equalization shall raise any mortgage, deed of trust, con- 
tract, or other obligation by which a debt is secured, money, or solvent 
credits, above its face value. The present State board of equalization 
shall continue in office until their successors, as herein provided for, 
shall be elected and shall qualify. The legislature shall have power to 
redistrict the State into four districts, as nearly equal in population as 
practicable, and to provide for the election of members of said board 
of equalization." 



300 THE GOVERNMENT OF THE UNITED STATES 

advisory council. The executive council which existed in 
each of the original States except South Carolina has dis- 
appeared in all cases except Massachusetts, Maine, and 
North Carolina. Although the governor has no council or 
cabinet like that of the President, there are usually several 
minor officers who have part in the general administration 
of the State. They are generally elected, and they are not 
responsible to the governor. These officers are not the 
same in all of the States. Some of the most prominent are 
a lieutenant governor, a secretary of State, a State auditor, 
a State treasurer, an attorney-general, a State superin- 
tendent of public instruction, and an officer or board of 
officers in charge of public works. The office of lieutenant 
governor, with its limited functions, suggests the office of 
the national Vice-President. In most of the States, he is 
ex officio the presiding officer of the senate. He succeeds 
to the governorship in case of the death or disability of the 
governor. 

The governor's activity falls within the limited sphere 
of a subordinate political organization, and is, therefore, 
necessarily limited. His main function is to provide for 
the faithful administration of the law. He may pardon 
convicted criminals, except such as have been convicted 
on impeachment or for treason. He commands the State 
militia and has authority to appoint a limited number of 
State officials. He exercises in legislation a limited veto, 
which in certain cases may be overridden by the legislature. 

Topics. — The office of governor. — Term of office. — Minor 
officers; lieutenant governor. — Duties of governor. 

References. — Bryce, American Commonwealth, i, 222, 460- 
479, 508, 527, 720; ii, 112; Hart, Actual Government, 136-146; 
Fiske, Civil Government, 170-179. 

166. The State Judiciary.— The principal State courts 
may be grouped in three classes: In the first class are the 



THE GOVERNMENT OF THE STATES 301 

supreme courts or courts of appeal in the States; in the 
second class, the superior courts of record; in the third class, 
the various local courts. Most of the original States had 
superior chancery courts. These were later abolished in 
many States, and cases in equity were referred to the 
ordinary law courts. 1 The State courts exercise final juris- 
diction except in cases for which legal provision has been 
made for appeal to the Supreme Court of the United States. 
The reported decisions of a court of record in any State are 
received in the other States and considered, like the reports 
of the English courts, as indicating what the law is on the 
subject treated; but the State law reports are not all re- 
garded as equally authoritative. The decisions of a weak 
court offer only imperfect evidence of the law. This con- 
stant reference in one State to the decisions rendered in 
other States tends to preserve the harmony and uniformity 
of the laws enforced throughout the Union. 

A conspicuous sign of the growth of democracy in the 
United States before the Civil War was the change made in 
the method of appointing State judges. In eleven of the 
thirteen colonies they were appointed by the governor, but 
in Connecticut and Rhode Island they were elected by the 
legislature. Under the first State constitutions the judges 
of four States, in addition to Connecticut and Rhode Island, 
were elected by the legislature. In one State, Georgia, they 
were elected by the people. During the fifty years prior to 
1860, American society became more democratic. Several 
States took the appointment of the judges from the govern- 
ors or the legislatures and caused them to be elected. The 
new States organized in the West adopted the more demo- 
cratic method of selecting judges. At present, in five States 
they are elected by the legislature; in eight appointed by 
the governor; and in the other States elected by the people. 

1 See Equity, § 134. 



302 THE GOVERNMENT OF THE UNITED STATES 

The original States have generally been conservative in this 
matter, holding to the method of appointment by the 
governor; but the new States have caused their judges to 
be elected by popular vote. Under the influences that have 
produced these results, a change in the judges' tenure of 
office has been effected. In the early history of most of the 
States, the judges were appointed for life; but the life tenure 
is retained in only four States. In all the other States the 
judges are elected or appointed for a definite term of years. 
The average term is not more than eight or ten years. The 
two conspicuous results of the growth of the democratic 
spirit with respect to the State judiciary are the selection 
of the judges by popular vote and the establishment of 
short terms of service. 

It is affirmed that the direct dependence cf the judges 
on the favor of the voters influences their judgments and 
tends to defeat the ends of justice. The full mischievous 
effect of this dependence is prevented: (1) By the presence 
of the Federal courts in each State, whose judges, appointed 
for life, are usually independent and incorruptible officials; 
(2) by a strong public opinion which demands that honesty 
and impartiality shall be maintained in the courts even 
though other branches of the Government should fall below 
the proper standard; (3) by the influence of the bar, which 
often protests against bad nominees and in general exercises 
a conservative and sobering influence on the radicalism of 
the community. In spite of these restraining influences, 
the elective system does not, speaking generally, secure for 
the State courts such judges as an enlightened common- 
wealth ought to have. They are, taken as a body, inferior 
both in learning and character to the appointed Federal 
judges. Because we approve of the republican form of 
government, it does not follow that we are obliged to apply 
the principle of election without regard to results. The 
makers of the Federal Constitution were believers in re- 



THE GOVERNMENT OF THE STATES 303 

publican government; but they carefully provided that in 
the system they created the judges should be appointed and 
not elected. 

Topics. — Three classes of State courts. — Final jurisdiction of 
State courts. — Appointment of State judges. — Term of office. — 
Forces tending to sustain the high character of the courts. 

References. — Bryce, American Commonwealth, i, 32, 430; 
480-485; ii, 495-505; Hart, Actual Government, 152-165; Eiske, 
Civil Government, 185-188. 

167. The Grand Jury. — The satisfactory working of the 
judiciary is dependent not alone on wise and upright judges. 
The other institutions of the court must be maintained free 
from corruption and be moved to effective cooperation. 
The most important of these institutions are the grand 
jury and the petit jury. These, the English colonists 
carried to America, for they regarded them as essential in 
making permanent the liberty they sought to establish. 

The grand jury consists of not less than twelve nor more 
than twenty-three persons. The members are taken, as 
prescribed by law, from the citizens of the community in 
which the body is organized. They are sworn and directed 
by the judges to inquire into and make presentment of all 
offenses committed within their district. The presentment 
is made only when at least twelve members of the grand 
jury are in favor of it, and this presentment may be made 
the basis of an indictment on which the person accused may 
be brought to trial. The fact that the members of the grand 
|ury, who examine the grounds of the accusation, belong 
>,o the same community as the accused person, is regarded 
is security against unjust prosecutions. When the grand 
iury has examined the formal accusation or indictment 
against a person, it determines whether the charges are of 
such a nature as to warrant the State in proceeding with 
the trial. In case the indictment is found to be "a true 



304 THE GOVERNMENT OF THE UNITED STATES 

bill," the prisoner is brought to trial; otherwise he is re- 
leased. 

Topics. — Cooperative institutions of the court. — Description of 
grand jury. — Functions. — Procedure. — A true bill. 

References.— Miller, Lectures, 490, 506, 517; Cooley, Consti- 
tutional Law, 290. 

168. Trial by Jury. — Trial by jury "in criminal cases 
has been looked upon as a necessary part of the liberties of 
the people, and a sentiment attaches to it which will scarcely 
suffer its value to be questioned. Every State constitution 
preserves it for suits in the State courts, and every new or 
revised constitution repeats a guaranty of it. Even the 
common-law requirement of unanimity in the verdict, which 
is of more than doubtful value, is retained without inquiry 
or question, because it has existed from time immemorial." l 
In the fifth and seventh amendments to the Constitution, 
adopted in 1791, it was provided that "no persons shall be 
held for a capital, or otherwise infamous crime, unless on a 
presentment or indictment of a grand jury, except in cases 
arising in the land or naval forces, or in the militia, when in 
actual service in time of war or public danger"; and that 
"in suit at common law, where the value in controversy 
shall exceed $20, the right of trial by jury shall be preserved, 
and no fact tried by a jury shall be otherwise reexamined in 
any court of the United States, than according to the rules 
of the common law." 

A person brought to trial is entitled under the law to 
certain privileges. When the jury has rendered a verdict 
concerning him, he is entitled to have it treated as final; 
whether he has been acquitted or condemned, he may not 
be tried again for the same offense. The jury may fail to 
come to an agreement either to convict or to acquit, or it 

1 Cooley, Constitutional Law, 238, 



THE GOVERNMENT OF THE STATES 305 

may be discharged before the completion of its work, or 
the judgment of the court may be withheld even after a 
verdict by the jury has been rendered — in any. one of these 
cases a new trial may be had. In any trial, moreover, the 
accused may not be compelled to testify against himself; 
and without due process of law he may not be deprived of 
life, liberty, or property. 

As maintained in the United States, the jury system is 
generally conformed to the following conditions: (1) The 
jury must be composed of twelve persons; (2) the jury must 
be drawn from the district or county in which the trial is 
held, and from the whole number of qualified citizens not 
expressly exempted by statute; (3) the verdict of the jury 
must be unanimous; (4) the jury must be impartial. 

While these are the normal conditions under which the 
jury exists, some of them are modified under certain circum- 
stances. In certain cases in some of the States a jury may 
be composed of less than twelve persons. The requirement 
of unanimity is strictly adhered to in criminal cases, and 
generally also in civil cases; but in civil cases in California 
and Louisiana a verdict by two-thirds of the jury may be 
recorded. 

Topics. — American opinion of trial by jury. — Constitutional 
statement. — Verdict. — Description of jury system. — Unanimity. 

References. — Fiske, Civil Government, 186; Hart, Actual 
Government, 22-32, 156-160; Willoughby, Rights and Duties, 95- 
108; Miller, Lectures, 319, 361, 490, 499. 

169. The Judgment of One's Peers. — The statement that 
one must be subject to the "legal judgment of his peers" 
has no important significance in the United States, since 
the law here recognizes no distinct social classes. In 
England, where strongly marked classes existed, if one were 
tried by a jury composed of members of the class to which 
he belonged, it was supposed that he would receive an im- 



306 THE GOVERNMENT OF THE UNITED STATES 

partial verdict; if his jury was composed of members of 
other classes, he might expect to receive a verdict more or 
less modified by class prejudice or class antagonism. There- 
fore, in order to secure for the accused as just or as favor- 
able a judgment as possible, English law provided for trial 
by a jury of one's peers, or members of the class to which 
one belonged. It was supposed that the most important 
influence that might interfere with the impartiality of a 
jury was such as might arise from the differences of social 
classes. The absence of legally recognized classes in the 
United States has taken away all importance from this 
special provision. The purpose of the law is the same in 
the United States as in England, — namely, to secure an im- 
partial verdict, — but there is here no recognized single cause 
specially interfering with the impartiality of a jury. 

Topics. — Phrase of little significance in the United States. — 
Original purpose. 

FOR ADVANCED STUDY 

The State Government. — Goodnow, Comparative Adminis- 
trative Law, i, Books II, III; Johns Hopkins University, Studies, iii, 
Nos. 9, 10; iv, No. 5; Cooley, Constitutional Law, Chaps. X, XI; 
Cooley, Constitutional Limitations; Bryce, American Common- 
wealth, i, Chaps. XL-XLVI; Baldwin, Modem Political Institu- 
tions, Chaps. Ill, IV, XI; Evans, Handbook of American Govern- 
ment; H. von Hoist, Constitutional Law, §§ 79-90. 

State Legislatures. — American Academy of Political Science, 
Annals, i, 26-42; vi, 254-267; Political Science Quarterly, v, 224- 
258; Bryce, American Commonwealth, i, Chaps. XL, XLIV, XLV; 
Roosevelt, American Ideals, No. 5; Schouler, Constitutional Studies. 

State Legislation. — Eaton, Government of Municipalities, 
Chap. X; American Bar Association, Reports, 1884: 275-301, 1892: 
245-311; American Academy of Political Science, Annals, vii, 
411-425; ix, 231-245; xi, 174-190; xiii, 212-229; xv, 160-170; 
xvii, 244-259. 



THE GOVERNMENT OF THE STATES . 307 

The State Executive Department. — Cooley, Constitutional 
Limitations, 218-222; Goodnow, Comparative Administrative Law, 
i, 74-82, 102-106, 134-137, 146-161; ii, 1-100; Evans, Handbooks 
of American Government; Bryce, American Commonwealth, i, Chap. 
XLI; Columbia University, Studies, ix, No. 3; Political Science 
Quarterly, 15: 50-74; American Academy of Political Science, 
Annals, iv, 883-903; xvii, 74-91; xviii, 434-445; Roosevelt, Ameri- 
can Ideals, No. 8. 

The State Courts. — Cooley et al.\ Constitutional History, 
Chap. V; A. L. Lowell, Essays, No. 3; Bryce, American Common- 
wealth (revised edition, 1895), i, Chap. XLII; ii, Chaps. CI, CII; 
Baldwin, Modern Political Institutions (1898), Chap. VII; Dillon, 
Municipal Corporations (fourth edition, 1890), ii, Chaps. XX- 
XXIII; De Tocqueville, Democracy in America, i, Chaps. VI, VII. 

The Referendum. — Bryce, American Commonwealth, i, Chap. 
XXXIX; Deploige, Referendum in Switzerland; Oberholzer, Refer- 
endum in America, Chaps. VII-XVI. 

The Amendment of Constitutions. — Borgeaud, Adoption 
and Amendment of Constitutions, Parts I, III ; Bryce, American Com- 
monwealth, i, Chaps. XXXII, XXXVII, XXXVIII; Ames, Amend- 
ments to the Constitution (American Historical Association, Papers, 
v, 253-263); Burgess, Political Science, i, 137-154; Oberholzer, 
Referendum in America, Chaps. III-VI. 

The Sins and Shortcomings of State Legislatures. — 
Atlantic Monthly, 79: 366-377, 80: 42-53; North American Review, 
165: 240-246, 168: 84-91. 

Road=Making in States. — Forum, 26: 668-672; Popular 
Science Monthly, 51: 73-82; Smith, Training for Citizenship, §§ 92, 
94; Encyclopaedia Americana, xiii, under Roads and Highways. 

State Railway Commissions. — Dixon, State Railroad Con- 
trol, 201-211; Hendrick, Railway Control by Commissioners, 92-119; 
Hadley, Railroad Transportation, 134-145. 



CHAPTER XII 

LOCAL GOVERNMENT IN THE UNITED 
STATES 

170. The Government of New England Towns. — The 

local governments of the United States comprehend the 
town, the city, and the county governments. The most 
noteworthy of these is the town government of New 
England, which has come down to us from colonial times. 
Its most distinctive characteristic is its democracy. It is 
a government by the people. The territory of the town is 
a few square miles in extent, with clearly determined but 
irregular boundaries. The inhabitants live in part on the 
farms into which the territory is divided and in part in the 
village or villages that have grown up around the church or 
some place favorable for manufacturing. The voters come 
together at least once a year to make laws for the town, to 
elect the officers, to vote the necessary taxation, and to make 
the appropriations needed for schools, roads, and other local 
purposes. The meeting is presided over by the chairman 
or moderator, and each voter enjoys the same right as every 
other voter to introduce measures and to take part in the 
debate. The town meeting is held in the church, or in the 
townhall, if there is one, or in a schoolhouse. The principal 
executive officers elected at the town meeting are called the 
selectmen. There are usually three, five, or seven in a 
town; and there may be even a larger number. The num- 
ber in any given case depends on the population and the 
308 



LOCAL GOVERNMENT IN THE UNITED STATES 300 

importance of the town. They manage the public business 
under directions contained in the laws or resolutions of 
the town meeting. There is also a town clerk. He acts as 
secretary of the town meeting and keeps the town records. 
Other officers are a treasurer, assessors who make a valuation 
of the property for the purpose of taxation, a collector, who 
collects taxes, and several minor officers such as cemetery 
trustees, library trustees, and members of school committees. 

The appointment of minor officers and employees, and 
the details of administration must be left to a single per- 
son or to a small body of persons. Thus the selectmen, in 
the intervals between the town meetings, are required to 
perform nearly all of the functions of the town meeting 
itself. The most important limitations on their activity 
are that they may not appoint the higher officers, nor make 
laws except under special authorization of the body that 
elected them. They summon the town meeting; they man- 
age the financial affairs of the town; they establish rules 
relating to the admission to the town of new inhabitants; 
they have charge of the common lands; they control the 
laying out and improvement of the roads; they fix bounda- 
ries and settle controversies relating to them; they have 
general control over public institutions and public means of 
communication; and in some instances they exercise a cen- 
sorship over morals. 

The town was formerly the fundamental political or- 
ganization, and had a large part in the State government; 
and in some States at present each town, however small, 
sends at least one representative to the State legislature. 
Where every town selects one or two representatives from 
its inhabitants, we have an extreme case of small district 
representation, with the inevitable result of a numerous 
legislature composed principally of ordinary men from the 
small towns. As long as New England continued to be oc- 
cupied almost exclusively by the descendants of the origi- 



310 THE GOVERNMENT OF THE UNITED STATES 

nal inhabitants, it was able to maintain the reputation of 
its ancient democracy. But the decay of many of the 
towns and the coming of immigrants without political 
experience or knowledge of New England traditions has 
brought into influence a population not fitted to the insti- 
tutions. 

Topics. — The New England town. — The town meeting. — 
Officers of the town. — Reason for appointing selectmen in a demo- 
cratic town. — Restrictions on their power. — Their functions. — 
Representation of towns in the State legislatures.— Disadvantages 
of the old system. 

References. — Bryce, American Commonwealth, i, 561, 565, 
567, 572, 576, 580, 583, 592, 631; ii, 246; Hart, Actual Government, 
170-178; Fiske, Civil Government, Chap. II; Ford, American Citi- 
zen's Manual, Part I, 53-61 ; Bryce, American Commonwealth, i, 
567; Fiske, Civil Government, 20-38, 79; Hart, Actual Government, 
171, 172. 

171. Phases of the History of the Town. — The town as 
it appears in the United States has as its historical ante- 
cedent the clan, the mark, or the old English town organiza- 
tion. In the old English town there was a tungemot, or 
town meeting, which exercised in the management of local 
affairs essentially the same powers as the later town meeting 
of New England. The town had also in England, through 
representatives in the assemblies of the hundreds and the 
shires, part in the transaction of business in which several 
towns were interested. This practice furnished an early 
instance of political representation, which has become the 
most vital principle in the Government of the United States. 
The town was a political unit, and the purposes of its or- 
ganization were the common interests of the members of 
the community. The cooperation of the inhabitants in the 
transaction of secular business created a bond of community 
feeling which tended to hold them together in managing 



LOCAL GOVERNMENT IN THE UNITED STATES 311 

their religious affairs. Thus, in the course of time, as these 
affairs became organized, the parish became coextensive 
with the town; and in certain instances the designations of 
town and parish were applied indifferently, each covering 
both the secular and the ecclesiastical organizations and 
interests. In these instances the vestry was only another 
form of town meeting. A later step in the history of the 
town was a more or less complete separation of the ecclesi- 
astical from the civil affairs, and the application of the term 
parish to the community as a religious body. 

The towns in New England held a position of greater 
political importance than did those in England. Because 
the hundred did not appear in New England, and because 
of the imperfect development of the county, the towns 
became the basis of the constitutional structure that was 
erected in the States. In the first place, they constituted 
the fundamental districts for the assessment and collection 
of taxes. In the second place, each was required to main- 
tain a body of men with military training; and thus the 
towns were the units of the militia organization. In the 
third place, the towns were the districts recognized in the 
representative system of the colonies and the States. 

Topics.- — Antecedents of the town. — Its relation to the parish. 
— Reason of the town's prominence in New England. 

References. — Bryce, American Commonwealth, i, 562; Hart, 
Actual Government, 170; Fiske, Civil Government, 34-47. 

172. Transitory Local Institutions of the Dutch in New 
York. — The feudal organization transplanted by the Dutch 
to New York and established on the banks of the Hudson 
River was necessarily transitory. Under the authority of 
the Dutch, exercised through the Dutch West India Com- 
pany, it was provided that any person who should plant a 
colony of fifty persons over fifteen years of age would be 
permitted to hold a tract of land extending four miles along 



312 THE GOVERNMENT OF THE UNITED STATES 

one side of a navigable river, or two miles on each side, 
" and so far into the country as the situation of the occupiers 
will permit." The holder of such a tract was called the 
"Patroon," and the persons who settled on his lands occupied 
the position of feudal dependents. They had no rights of 
self-government, but were required to serve the patroon 
for the period specified in their agreement with him. The 
grant by which the land was conveyed to the patroon made 
it his peculiar property subject to perpetual inheritance by 
his heirs. 1 

When it became manifest that feudalism of the European 
type would not flourish in the New World, a new charter 
was granted to the company, and by this charter a class of 
small proprietors was created. It provided that anyone 
who should take with him five persons over fifteen years of 
age, and settle on territory under the jurisdiction of the 
Dutch, might receive two hundred acres of land as his private 
property and certain privileges with respect to the public 
lands. Under this charter villages came into existence and 
a form of local self-government was established; but after 
New Netherlands fell under the authority of the English, 
the local government was so modified as to make it more 
like that of New England. 

Topics. — Settlement under Dutch West India Company. — 

The patroon. — Later provision for small holdings. — Rise of villages. 

References. — Fiske, Civil Government, 79, 110, 111, 150; 

McLaughlin, History of the American Nation, 97-104. 

173. The Parish of Virginia. — The town of New England 
and the parish of Virginia are reproductions of the same 
institution from different stages of its history. . The New 
Englanders laid stress on its secular character; the Vir- 
ginians, on its ecclesiastical character. The New Englanders 

1 See § 6. 



LOCAL GOVERNMENT IN THE UNITED STATES 3l3 

went back for their model to the earlier English town; 
the Virginians found their model in the English parish of 
the seventeenth century. In the Virginian parish the parish- 
ioners played a less important part than did the members 
of the New England town meeting. At first they elected 
the vestry, who were expected to be the "most sufficient 
and selected men/' usually twelve in number. But later 
the members of the vestry acquired the power to fill vacan- 
cies in their number, and thus the vestry became a self- 
perpetuating and undemocratic body. It appointed from 
its members two churchwardens, who were the executive 
agents of the vestry, and who managed the finances of the 
parish, guarded the morals of the community, and did what- 
ever they were able to preserve order. Although the officers 
of the parish performed certain purely secular functions, 
the affairs of local civil government were largely in the hands 
of officers of the county. 

Topics. — Relation of parish to town. —Parishioners and New 
England freemen. — The vestry. — The churchwardens. 

References. — Fiske, Civil Government, 36-39, 41, 48, 59-61, 
65, 71-73; McLaughlin, History of the American Nation, 164-166. 

174. County Government in the South Atlantic States. — 

The county government of the southern colonies was the 
outgrowth of the peculiar social conditions that prevailed 
there. The population was scattered on large plantations 
and had few interests in common, and the territory occupied 
by any considerable number of inhabitants was so extensive 
as to make impracticable a popular assembly or a general 
county meeting. The local institutions of the southern 
colonies have been inherited by the States that have suc- 
ceeded them. "Of necessity, therefore, the administration 
of all local affairs is intrusted wholly to the county officers, 
and the political duty and privilege of the citizens begins 

and ends on election day. The duly authorized officers of 
21 



314 THE GOVERNMENT OP THE UNITED STATES 

the county are thus charged with the care and control of 
the county property; with levying and collecting all State 
and county taxes; the division of the county into election 
districts; the laying out and repairing of roads and bridges; 
the care of the poor, the police of the county, and, in gen- 
eral, all county and local affairs." These duties are usually 
performed by a body called the board or court of county 
commissioners or supervisors, generally elected by the 
people. With the development of the system of public 
instruction, the county has become a unit in the school 
organization, the teachers being under the direction of a 
county superintendent. The county is also a judicial dis- 
trict. There are county judges and sheriffs. The sheriff 
is the chief executive officer of the county judiciary. There 
are counties in New England, and there are local divisions 
of the county in the southern States; but these are main- 
tained for the purposes of administration and exercise little 
or no legislative power. 

If we were to describe the government of a county in 
terms that would be applied to a State, we should say that 
the legislative power is held by the county board of com- 
missioners, or supervisors, who are elected for terms varying 
from two to four years, by the voters of the districts into 
which the county is divided. They deal with questions 
relating to the limits of the townships and school districts. 
They have charge of the roads, make provision for taking 
care of the poor, and supervise the construction- and repair 
of public buildings. They determine in general the amount 
of money to be raised by taxes, and what expenses are to 
be met. 

Conspicuous among the other officers of the county is 
the sheriff. He is, however, not the powerful official who 
appeared under that title in the earlier centuries in England. 
It is his duty to preserve the peace and order of the county, 
and to execute the decrees and decisions of the courts of 



LOCAL GOVERNMENT IN THE UNITED STATES 315 

record. Among the other important county officers are the 
county auditor and the county clerk. The auditor audits 
bills against the county, and the clerk keeps the records of 
the county board. In the county government there are 
also an assessor, a treasurer, and a number of minor officers. 
Important among the functions of the county government 
are the care of the poor and the construction and preserva- 
tion of the roads. 

Topics. — Conditions favoring growth of the county in the 
South. — The officers of the county and their duties. 

References. — Bryce, American Commonwealth, i, 568-583; 
ii, 720; Fiske, Civil Government, 48-100, 185; Hart, Actual Govern- 
ment, 174-179. 

175. Local Government in the Western States. — When 
the inhabitants of New England and the South Atlantic 
States went westward and formed settlements in the region 
of the Great Lakes and in the Ohio and Mississippi valleys, 
they reproduced where they settled their respective local 
institutions. The country between the main lines of these 
two migratory columns was occupied in part by New Eng- 
enders and in part by emigrants of the southern States, 
and governments established in this middle ground had 
some of the characteristics of the two forms. In some places 
the county appeared to be more conspicuous than the town, 
particularly in Pennsylvania, New Jersey, New York, Ohio, 
Indiana, and Iowa; in other places the town appeared to 
be more conspicuous than the county. This is the con- 
dition in Michigan, Wisconsin, Minnesota, and in the north- 
ern part of Illinois. Wherever the influence of the New 
Englanders was dominant, there the town organization is 
distinctly recognized. The contest for supremacy between 
the adherents of the town organization and the supporters 
of the county government is illustrated in the history of 
Illinois. New England influence was clearly dominant 



316 THE GOVERNMENT OF THE UNITED STATES 

in the northern half of the State, while the southern half 
was settled by pioneers from Kentucky and Tennessee; 
and, as a consequence of this, the town system prevailed 
in the north, and the county system in the south. The 
Illinois State constitutions of 1848 and 1870 provide that 
any county may adopt the system of township organization 
"whenever the majority of the legal voters of the county, 
voting at any general election, shall so determine." Under 
this power the area of the township system has been ex- 
tended in Illinois. By a similar method other western 
States, as their population increases, are adopting the same 
system, and this movement is attended by a decline in the 
importance of the county. 

In the States where the mixed system prevails — for 
example, in Pennsylvania, Ohio, Indiana, and Iowa — the 
towns exercise extensive powers, but not through a demo- 
cratic assembly as in New England. The voters elect 
officers who are charged with the public affairs of the town- 
ship. These officers in Ohio are three township trustees, 
a clerk, and a sheriff; in Pennsylvania, two or three super- 
visors, an assessor, a town clerk, three auditors, and two 
overseers of the poor; in Iowa, three trustees, one clerk, a 
road supervisor for each road district, an assessor, two or 
more justices of the peace, and two or more constables. 
In States of this class, however, the county overshadows 
the township. 

Under the system carried out in surveying the lands of 
the West, the townships have been laid out with regular 
boundaries. This system provides that the land shall be 
divided into ranges by lines six miles apart running east and 
west. These ranges are numbered from a given parallel 
north and south, and are divided into townships which are 
numbered east and west from a standard meridian. The 
townships are six miles square, and each is divided into 
thirty-six sections. Each section is one mile square, and 



LOCAL GOVERNMENT IN THE UNITED STATES 317 

the several sections of a township are numbered as indicated 
by the following diagram: 

SECTIONS OF TOWNSHIP 



6 


5 


4 


3 


2 


1 


7 


8 


9 


10 


11 


12 


18 


17 


16 


15 


14 


13 


19 


20 


21 


22 


23 


24 


30 


29 


28 


27 


26 


25 


31 


32 


33 


34 


35 


36 



By this system it is easy to describe any section or part 
of a section it may be desired to refer to. A description of a 
quarter of a section may run somewhat after this manner: 
Northwest quarter of section eighteen, township six west, 
range four north. 

Topics. — Town and county in the West. — Local government of 
Illinois. — Towns under mixed system. — Town officers in Ohio, 
Pennsylvania, and Iowa. — The boundary and divisions of the 
western townships. 

References. — Bryce, American Commonwealth, i, 565-580; 
Fiske, Civil Government, 77-93; Ford, American Citizen's Manual, 
Part I, 64-66. 

176. The Government of Cities. — When the Federal Gov- 
ernment was established, there were very few cities within 
the territory of the United States, and these were occupied 
by only a small percentage of the inhabitants. In the be- 
ginning of the twentieth century, there were many cities, 



318 THE GOVERNMENT OF THE UNITED STATES 

and their inhabitants constituted a large percentage of the 
population of the country. About one-third of the inhabit- 
ants of the United States were then living in cities. 1 The 
establishment of an efficient municipal government is, there- 
fore, the most important political undertaking before the 
nation. The local governments of the townships and the 
counties are not suited to large numbers of persons living 
within the narrow limits of a city. An English writer on 
American institutions says, "There is no denying that the 
government of cities is the one conspicuous failure of the 
United States." The condition of things provoking this 
criticism is in great measure due to the attempt to govern 
large cities under a form of government adapted to rural 
communities. At present a city government embraces 
executive, legislative, and judicial departments. 

The head of the executive department is the mayor, 
who is elected directly by the voters of the city. There are, 
besides the mayor, certain executive officers or boards in 
charge of important public interests, such as the schools, 
the parks, and the police. These officers or boards are some- 
times appointed by the mayor, sometimes elected by the 
voters, and sometimes chosen by the municipal legislature. 

The city legislature, or city council, is sometimes com- 
posed of one chamber and sometimes of two. The members 
are elected by the voters of the city. In about three-fourths 
of the cities the municipal council consists of a single house, 
the members of which are usually elected as representatives 
of the several wards. In some cases, however, they are 
elected by a general ticket, and in other cases they are elected 
from municipal districts into which the city is divided. 
When the legislative branch of the city government con- 
sists of two houses, the members of the upper house are 

1 In 1790 3.4 per cent of the total population lived in the cities of 
8,000 inhabitants or more; in 1820, 4.9 per cent; in 1850, 12.5 per cent; 
in 1860, 16.1 per cent; in 1890, 29.2 per cent; and in 1900, 33.1 per cent. 



LOCAL GOVERNMENT IN THE UNITED STATES 3.19 

sometimes elected by a general ticket, and in other cases 
they are elected from election districts, while the members 
of the lower house represent the wards. The powers exer- 
cised by the municipal council are such as are conveyed to 
it by the municipal charter. Thus the powers of the munic- 
ipal legislature, like the powers of Congress, are essentially 
enumerated powers. Its main function is the passing of 
ordinances relating to all branches of the municipal adminis- 
tration, including all phases of municipal taxation and 
expenditure. 

The city judiciary is composed of judges, either elected 
by the city voters or appointed by the State. 

The likeness of the general form of this government to 
that of a State becomes especially evident when the charter 
is made to appear as the city's constitution. This charter 
is an act of the State legislature. It is, however, some- 
times drafted by a committee of freeholders and adopted 
by the voters of the city before it is submitted to the legis- 
lature. It is then introduced as a bill and passed like any 
other bill. 

Where the number of city officials to be elected is large, 
the voters have great difficulty in voting intelligently. This 
has provoked inquiry as to the possibility of so ordering the 
government that fewer officials will have to be elected. 
In this direction are moving also those persons who are 
advocating a more centralized form of city government, 
who are urging the plan of electing the mayor and a few of 
the principal officers, endowing them with large powers of 
appointment, and holding them responsible for the econom- 
ical and efficient administration of the city's offices. But 
hitherto the majority of the cities of the United States have 
been governed under organizations like that described — 
under a non-centralized system — and have almost univer- 
sally been badly governed. 

In attempting to govern cities, the people of the United 



320 THiiJ GOVERNMENT OF THE UNITED STATES 

States have shown how completely they are dominated by 
a single idea of governmental form. This form is that which 
they have applied to the nation and the State, and which has 
had its most noteworthy success in rural communities, such 
as the forest cantons of Switzerland, the English colonies 
in America, and the United States during the early decades 
of the nineteenth century. When the people of this coun- 
try found themselves face to face with the practical problem 
of governing large cities, they did not set to work inde- 
pendently to find an organization suited to the government 
of compact masses of persons with immense financial inter- 
ests, but instinctively applied to them our traditional form 
of government. The great city was treated just as rural 
districts were treated — as a political body to be governed 
by an elaborate political organization. 

The main public activities of a great city are, however, 
not political but economic. They comprehend construct- 
ing and cleaning streets; providing facilities for disposing 
of sewage; controlling the construction of buildings and 
means of transportation; employing and paying teachers 
and other municipal employees of various grades; providing 
light and water for public and private use; and doing 
numerous other things that fall within the field of practical 
economics. The business, therefore, devolving upon a city 
government is not, either in extent or variety, largely 
different from that performed at present by certain great 
industrial corporations. The president of such a corpo- 
ration wishes a few persons trained technically and by 
experience for the different branches of work to be done — 
men on whom he can depend to manage the several depart- 
ments assigned to them, and who will be accountable to him. 
If, instead of following this method, he were to introduce an 
organization like that of any one of our cities, if he were to 
gather for his assistance two large bodies of men more or 
less ignorant of the task in hand and entirely without ex- 



LOCAL GOVERNMENT IN THE UNITED STATES 321 

perience in this kind of undertaking, his corporation would 
collapse under the stress of competition with other cor- 
porations more wisely organized. But our cities are able to 
keep up their clumsy and wasteful processes, because they 
are not in a competitive undertaking. If they make waste- 
ful blunders, if they are on the losing side of their economic 
transactions, it is all covered by public funds drawn from 
the taxpayers. Into the management of their cities the 
American people have instinctively carried their traditional 
form of government. Maintaining the form has been more 
to them than securing the result of good administration. 
When one regards the general enlightenment of the nation, 
its pretension to high political standing, and then considers 
the governmental condition of many of the cities, it does not 
seem extravagant to affirm that they constitute a national 
disgrace. The leading nations of Europe reach better 
results. By a system which centralizes power and provides 
for individual responsibility, the administration of munic- v 
ipal affairs in all of these nations is rendered more efficient 
and more economical than the municipal administration of 
American cities. 

Topics. — Urban and country population. — General character of 
city government in the United States. — General form of city govern- 
ment: the executive; the legislative; the judiciary. — Likeness to 
State government. — Difficulty in electing city officials. — Municipal 
affairs compared to affairs of a private corporation. — Centraliza- 
tion and individual responsibility. 

References. — Bryce, American Commonwealth, i, Chap. L; 
Fiske, Civil Government, 98-140; Ford, American Citizen's Manual, 
Part I, 66-83 ; Hart, Actual Government, Chap. XI ; Cooley, Consti- 
tutional Law, 343-345. 

FOR ADVANCED STUDY 

The Town and the County. — Howard, Local Constitutional 
History; Cooley, Constitutional Law, Chap. XVII; Cooley, Consti- 



322 THE GOVERNMENT OF THE UNITED STATES 

tutional Limitations, Chap. VIII ; Ford, American Citizen's Manual, 
Part I, Chap. II; Hosmer, Anglo-Saxon Freedom, Chap. XVII; 
Hinsdale, American Government, Chap. LV; Goodnow, Compara- 
tive Administrative Law, i, 162-233; Bryce, American Common- 
wealth, i, Chaps. XLVIII, XLIX; A. de Tocqueville, Democracy in 
America, i, Chap. V; Fiske, Civil Government, Chaps. II-IV. 

The Municipal Council. — Eaton, Government of Municipali- 
ties, Chaps. X, XI ; Dillon, Municipal Corporations, i, Chaps. X-Xll ; 
Conkling, City Government, Chap. Ill; Goodnow, Municipal Prob- 
lems; Fairlie, Municipal Administration, Chap. XVII; Wilcox, Study 
of City Government, 143-179; Mathews, City Government of Boston. 

The Government of Municipalities. — Bryce, American 
Commonwealth, i, L-LII; ii, LXXXVIII-LXXXIX; Conkling, City 
Government; Cooley, Constitutional Law, Chap. XVII; Cooley, 
Constitutional Limitations, Chap. VIII; Dillon, Municipal Corpo- 
rations; Eaton, Government of Municipalities; Fairlie, Municipal 
Administration; Goodnow, Comparative Administrative Law, i, 
162-233; Goodnow, Municipal Home Rule; Wilcox, Study of City 
Government. 

The Powers of the Mayor. — Yale Review, viii, 274-288; 
Municipal Affairs, iii, 33-60; National Conference for Good City 
Government, Proceedings, 1898: 71-80, 152-219; 1900: 119-126, 
136-146; Political Science Quarterly, 2: 291-312; Fairlie, Munici- 
pal Administration, Chaps. XVIII, XIX; Eliot, American Contri- 
butions to Civilization, No. 7; Parker, Municipal Government in 
Massachusetts, 14-24; Durand, Council vs. Mayor {Political Science 
Quarterly, 15: 426-451, 675-709). 

The Beginnings of the Public School System. —Martin, 
Evolution of the Massachusetts Public School System; Bush, Higher 
Education in Massachusetts; Boone, Education in the United States; 
Adams, Editor, Contributions to American Educational History; 
United States Bureau of Education, Circulars of Information. 

Municipal, State, and Federal Debts.— Adams, Public 
Debts; Noyes, Thirty Years of American Finance; Kearny, Sketch 
of American Finances; Scott, Repudiation of State Debts; Fairlie, 
Municipal Administration, Chap. XIV; Adams, Science of Finance, 
Book III. 



LOCAL GOVERNMENT IN THE UNITED STATES 323 

City Streets. — Popular Science Monthly, 56: 524-539; Fairlie, 
Municipal Administration, 227-238; Lalor, Cyclopaedia, i, 464; 
Nation, 49: 124, 125, 162, 163. 

Municipal Socialism. — North American Review, 172: 445- 
455; Arena, 19: 43-53; 25: 19S-209; Forum, 32: 201-216; Inde- 
pendent, 53: 2633-2636; 47: 569-579; 52: 1165-1168; Engineering 
Magazine, 5: 725; 9: 44; Cosmopolitan, 33: 425-435. 

The Poor of the Great Cities. — Riis, Battle with the Slum,s; 
North American Review, 161: 685-692; Atlantic Monthly, S3: 163- 
17S; Riis, Tenements; Scribner's Magazine, 16: 108-117; Century, 
53: 247-252; 45: 314-316; Forum, 19: 495-500; Review of Reviews, 
6:720, 721; Scribner's Magazine, 11:531-556; 697-721; 13:357- 
372; 14: 121-128; 17: 102-114; Seventh Special Report of the Com- 
missioner of Labor, 1S94. 

The Sanitation of Cities.— Forum, 20: 747-760; Outlook, 
69: 728-730; Harper's Magazine, 71: 577-5S4; North American Re- 
view, 161: 49-56; Outlook, 62: 416; 66: 126-12S. 



CHAPTER XIII 

THE INDIVIDUAL CITIZEN IN RELA- 
TION TO THE GOVERNMENT 

177. The Minor. — The first specific act of the Govern- 
ment with particular reference to the individual citizen is 
the registration of his birth. In the United States this 
registration is much less complete than in some other coun- 
tries. It is made by different officers in different parts of 
the country. In the New England town it is made by the 
town clerk. In other places the health officer keeps a rec- 
ord of all births, and this record is deposited in the office of 
the county recorder. 

The period of minority extends, according to the com- 
mon law, till the age of twenty-one years for both sexes. 
In some of the States, however, young women are deemed 
to be of age at eighteen. Before becoming of age a person 
cannot do any act to the injury of his property that he may 
not rescind when he attains his majority. But during 
a part of his minority, that is, after the age of fourteen, 
he is held to be responsible for crimes committed; for it is 
presumed that in the period between fourteen and twenty- 
one he is able to discriminate between right and wrong 
conduct. Before the age of fourteen there is a strong 
presumption of innocence, a strong presumption that a 
child has not a sufficient knowledge of conduct to bring any 
act of his into the same class with the criminal acts of mature 
persons. This presumption may be overcome by evidence. 
It may be shown that the child appreciates the criminality 
324 



THE CITIZEN IN RELATION TO THE GOVERNMENT 325 

of his conduct, and is thus guilty in the same sense that the 
mature criminal is guilty. After fourteen he is treated, as " 
to all criminal charges, as an adult. 

If a minor owns land, it can be sold only by direction of 
a court; and if the guardian would exchange the minor's 
money or other personal property for land, he must first 
be authorized by a court to do this. 

The resident of the United States as a minor enjoys 
the protection of the laws, but is unable to vote. Property 
may be held for him by a guardian or a trustee. If he 
makes contracts they cannot be enforced against him; for 
he may successfully set up as a defense that he is not liable 
because he is a minor. If, however, he has made a contract 
for necessities, it may be enforced against him. Under 
the designation of necessities are embraced whatever things 
are needful for the minor's support in his proper station of 
life, including a certain expenditure for education. The 
fact that a minor cannot be legally bound by contracts with v 
respect to other matters makes it inconvenient and un- 
desirable for him to attempt to carry on business in his own 
name. If a minor is engaged by a person of age for labor 
or for service of any kind, the courts will enforce the con- 
tract concerning wages which he may make with his em- 
ployer. His father, or his legal parent, has the right to 
receive the wages. The parent may, however, renounce 
this right, and thus, emancipating the minor, make it pos- 
sible for him to collect and hold his wages. 

Topics. — Registration of births. — The period of minority. — 
The minor's property. — Contracts by minors. 

References. — Kent, Commentaries, ii, 233-245; Smith, Train- 
ing for Citizenship, § § 58, 59, 394. 

178. Education. — Education is counted as one of the 
minor's legally recognized necessities. It is also one of the 
things which it is the duty of the parent to furnish his 



326 THE GOVERNMENT OF THE UNITED STATES 

child. It is, moreover, a subject which a republic cannot 
neglect without endangering its free institutions. The 
education required may be obtained either in private schools 
or in public schools. It is extremely important for the 
Republic to have all of its citizens educated, yet there is a 
possibility that private enterprise will not provide as many 
schools as are needed. These facts have made it seem 
advisable for the Government to establish and maintain a 
system of public instruction. Many of the States have, 
moreover, passed laws requiring children between certain 
ages, as from the eighth to the fourteenth year, to attend 
school. This is what is known as compulsory educa- 
tion. From Massachusetts, where public instruction was 
first established in the colonies, the system has extended 
to all parts of the country. The maintenance of public 
schools has also been made an important part of the 
governmental policy carried out in Porto Rico and the 
Philippines. 

In establishing a government for the territory northwest 
of the Ohio River, Congress affirmed in the Ordinance of 
1787 that "Religion, morality, and knowledge, being neces- 
sary to good government, and the happiness of mankind, 
schools and the means of education shall forever be en- 
couraged." A certain portion of each township, the six- 
teenth section, was set apart for the support of public 
schools. In States admitted since 1850, two sections in each 
township have been transferred from the Federal Govern- 
ment to the several States to be used for this purpose. Land 
warrants for 10,000,000 acres were given to the States in 
1862 for the support of agricultural colleges. The lands 
called for by these warrants might be located wherever there 
were unclaimed public lands. 

The public schools do not present all the opportunities 
for education offered to American boys and girls. There 
are also many private schools which they may attend. 



THE CITIZEN IN RELATION TO THE GOVERNMENT 327 

These are supported by gifts or endowments made by private 
persons, or by church organizations. The church schools 
it is naturally expected, besides rendering service in ad- 
vancing the general education of the nation, will be the 
means of attaching many young persons to the churches 
supporting them. It is expected, moreover, that in the 
large number of colleges maintained by the churches a 
desire will be aroused in many students to prepare them- 
selves to serve the church as priest or minister. 

Topics. — Education one of the minor's necessities. — Public 
instruction. — Compulsory education. — Education in the North- 
west. — Private schools. 

References. — Kent, Commentaries, i, 239, 240; Smith, Training 
for Citizenship, §§ 12, 40, 58, 318, 391-397. 

179. The Schools. — There are several grades of public 
schools: (1) The " common " schools in the country districts; 
(2) the primary and grammar schools; (3) the high schools. % 
The second and third classes of schools are in the larger 
towns and cities. The " common " schools and the primary 
and grammar schools are largely maintained by the State 
school fund. The high schools are generally supported by 
the cities or union districts in which they are established. 
General control over the public schools of a State is exer- 
cised by a State superintendent of education, and more 
immediate direction by county superintendents. For the 
Philippines there is a general superintendent for the whole 
archipelago and a division superintendent for each of the 
school divisions. A district school board or school com- 
mittee, consisting of three or four members, is the governing 
body of the district in matters relating to schools. It em- 
ploys the teacher or teachers, and conducts all the business 
connected with the maintenance of the school. The school 
board acts as a corporate body, the individual members 
separately exercising only such authority as is conferred 



328 THE GOVERNMENT OF THE UNITED STATES 

upon them by the board. In many of the States women 
can vote for school trustees, and may be elected and may 
serve as members of the board. The trustees, or members 
of the board, are not expected to interfere in the internal 
affairs of the school. This is the province of the teacher, 
who, in addition to the work of carrying on the instruction, 
is expected to maintain discipline among the pupils. But 
in case unjust punishments are imposed, appeal may be 
made from the teacher to the superior authority of the 
school board or the courts. The courts will generally sus- 
tain the teacher who imposes corporal punishment, but will 
insist that such punishment be reasonable. 

Topics. — Classes of public schools and their support. — General 
control. — The teacher. 

References. — Smith, Training for Citizenship, §§ 42-50, 64, 
76, 102, 103, 130, 277, 301 ; Hart, Actual Government, 535-554. 

180. Marriage. — The individual citizen who would mar- 
ry finds himself under restrictions established by the Gov- 
ernment. He must be of sound mind, or have sufficient 
understanding to deal with discretion in the ordinary affairs 
of life. Idiots and insane persons, not being competent to 
make a contract, are unable to make a legal marriage. As 
the basis of marriage is consent, a form of marriage pro- 
cured by force or fraud is void. And no lawful marriage 
is possible, except of persons who have arrived at the age 
of consent. This age, by the common law, is fixed at four- 
teen in males and twelve in females. English law borrowed 
this age from the Roman law. It was the established age 
in France before the French Revolution, but under the 
Code Napoleon the age of consent was raised to eighteen for 
young men and fifteen for young women. For the ages 
fixed by the common law, other ages may be substituted by 
statutes. "The consent of parents and guardians to the 
marriage of minors is not requisite to the validity of the 



THE CITIZEN IN RELATION TO THE GOVERNMENT 329 

marriage." This rule of the common law does not coincide 
with the practice as regulated by State statutes in many 
cases, where a more advanced age or consent of parents is 
required. Nor does it coincide with the practice of many 
European countries, where the marriage of minors is void 
without the consent of the father, or of the mother if she 
be the survivor. 

Topics. — Persons not competent to marry. — The age of consent. 
— Marriage of minors without consent. 

References. — Kent, Commentaries, ii, 75-93. 

181. The Family. — With marriage and the birth of chil- 
dren, a new family is established. The family may be 
called a natural society, as distinguished from a political 
society, since it has its basis in the natural instincts and 
affections of human beings. It maintains in all times 
essentially the same form, whatever may be the attitude 
of the government toward it. In its narrower limits it 
consists of father, mother, and children. Under the laws 
of ancient Rome, the father as head of the family had larger 
authority over the other members than is exercised by the 
head of a family in this country. In Japan matters relating 
to the family are controlled rather by social customs than 
by specific laws enacted by the government. But every- 
where, in spite of minor differences, it is the same kind 
of organization or society. Everywhere the children are 
dependent on their parents for a long period, and the parents 
exercise over them complete authority. But parental 
authority involves parental duties: the duty to support the 
children during the long period of helplessness, the duty to 
care for them when sick, the duty to clothe them, and the 
duty to educate them properly. The children, on the other 
hand^ owe to their parents obedience; and the habitual 

obedience of the child to parental authority prepares him 
22 



330 THE GOVERNMENT OF THE UNITED STATES 

for obedience to the higher authority of the state when he 
shall have become a mature citizen. 

The income of the family constitutes a common fund, 
which is expended for the good of all the members. This 
fund is controlled by the father, unless by special provision 
the control of a certain part of it is left in the hands of the 
mother. Whatever property of the family is not thus ex- 
cepted may be disposed of by will by the father at his death. 
If no will is made, the property is divided according to law 
and distributed to the mother, if the mother survives the 
father, and to the children. There is, however, certain 
community property of the family which the husband 
cannot dispose of without the consent of the wife. Such 
an item of property is the household; and there are certain 
articles of personal property that cannot be taken from the 
family under the law without the consent of the husband 
or the wife or both. Such articles are the household fur- 
niture, clothing, and tools necessary to enable the house- 
holder to carry on his business or trade. 

Topics. — Nature of the family. — Head of the family in Rome. — 
Family in Japan. — Parental duty and authority. — Family income. 
— Distribution of property on the death of the head of the family. 

References. — Smith, Training for Citizenship, §§ 31-37, 169. 

182. Master and Servant. — In the earlier centuries, 
among many peoples the family was thought of as made up 
of parents, children, and a slave or slaves. The Greek 
philosopher Aristotle included the slave in his view of the 
ideal family. But the disappearance of slavery in enlight- 
ened society has left the modern family composed of parents 
and children. The slave, therefore, as a kind of servant, or 
as a member of a household, may be neglected here. But a 
consideration of the affairs of American life make it neces- 
sary to take account of hired servants and their relation to 
their employers. This relation rests altogether on contract. 



THE CITIZEN IN RELATION TO THE GOVERNMENT 331 

The servant is bound by contract to render service; and 
the employer, to pay stipulated wages. " But if the serv- 
ant, hired for a definite term, leaves the service before the 
end of it, without reasonable cause, or is dismissed for such 
misconduct as justifies it, he loses his right to wages for the 
period he has served. A servant so hired may be dismissed 
by the master before the expiration of the term, either for 
immoral conduct, willful disobedience, or habitual neglect." l 
It is held that a servant who commits a crime, although it 
may not be immediately injurious to his master, cannot 
recover his wages. "A person hired by the year cannot 
quit the service without forfeiting his salary, nor can he be 
dismissed at pleasure, or without just cause, and thereby 
be deprived of it." 2 But a domestic servant may, by the 
custom respecting him, be dismissed on a month's notice, 
or on the payment of a month's wages, although he may 
have been hired for a year. If his employer sends him 
away without just cause before the end of the term, he is 
entitled to his full wages for the term. 3 The master is 
responsible for the act of the servant, when the act is done 
by the authority of the master. This holds true whether 
the act under consideration is the formation of a contract 
or the infliction of an injury. 

Topics. — The slave in the early family. — The modern hired 
servant. — His tenure of position. — Master's responsibility. 

183. Individual Control of Property. — When the citizen 
becomes of age, he enters into the full control of any prop- 
erty that may have legally belonged to him as a minor. At 
the same time he obtains the general right to acquire prop- 
erty; to hold, enjoy, and transfer it; and to transmit it 

1 Kent, Commentaries, ii, 258. 

2 Kent, Commentaries, 259, note. 

3 Kent, Commentaries, ii, 259, note. 



332 THE GOVERNMENT OP THE UNITED STATES 

by inheritance. This freedom is supported by the belief 
that in its enjoyment by individuals the public welfare will 
be more surely advanced than by any other means. The 
right of an individual citizen to hold a certain piece of 
property is, however, limited by the superior right of the 
state. If the property in question is needed for some 
public use, it may be taken by the state under the state's 
right of eminent domain, but only after having given proper 
compensation to the individual owner. Another condi- 
tion to which the owner of private property is subject, is 
that he must pay such taxes as are imposed by the Govern- 
ment. 

There are many instances when use or destruction of 
private property by persons other than the owners is lawful. 
If a common highway is out of repair, a person entitled to 
use the highway may lawfully go through an adjoining 
private inclosure. If a fire is raging in a city, it is lawful 
to destroy houses to prevent the spreading of the conflagra- 
tion. 

Topics. — Right to control individual property. — Conditions of 
this right. — Destruction of private property for the public good. 

References. — Kent, Commentaries, ii, 325-340; Smith, Train- 
ing for Citizenship, §§ 8, 16, 31, 37, 74, 125, 131, 180. 

184. Voting. — On reaching the age of twenty-one, the 
citizen of the United States prepares to take part in the 
government by voting for local, State, or Federal officers, 
or by voting on propositions submitted to the people for 
their decision, such as amendments to a State constitution, 
or propositions to issue municipal bonds, or other questions 
that are referred for decision to the popular vote. The 
requirements that must be fulfilled before he can vote are 
fixed by the State. As each State fixes these requirements 
independently, it is not to be supposed that they will be 
uniform throughout the Union. But since the adoption 



THE CITIZEN IN RELATION TO THE GOVERNMENT 333 

of the Constitution, there has been manifest a tendency to 
extend the suffrage by making fewer requirements of per- 
sons desiring to become voters. In almost all the States 
at present no property qualification is required. Rhode 
Island, New Hampshire, Virginia, and North Carolina are 
exceptions. In each of these there is still a . property 
qualification. Practically all male citizens over twenty- 
one years of age who have been resident in the State and in 
the town or county for some brief period are entitled to 
vote. In four States — Colorado, Idaho, Wyoming, and 
Utah — women have the suffrage. In about two-thirds of 
the States, the citizen is obliged to register before he is per- 
mitted to vote. If he can vote in the State for members 
of the lower house of the State legislature, he can vote in 
Federal elections — that is to say, for members of the House 
of Representatives or for presidential electors. 

Topics. — Qualification of voters. — Woman suffrage. 
References. — Smith, Training for Citizenship, §§ 85, 107, 304; 
Hart, Actual Government, 72-85. 

185. The Citizen and the Political Party. — Having be- 
come a voter and assumed control of his property, the citizen 
may wish to have a larger part in the affairs of the Gov- 
ernment than that represented by voting. He, therefore, 
allies himself with some one of the political parties. He 
may not agree fully with all of the principles of any of the 
existing parties; but he attaches himself to that one whose 
principles most nearly coincide with his own, or with that 
cne to which his father belonged, or, perhaps, with that one 
which happens to be dominant in his community. This 
party, like all political parties, he finds to be simply a volun- 
tary association of citizens who use it as a means for putting 
some of its members into offices of the Government, and 
for making its principles determine the conduct of public 
affairs. 



334 THE GOVERNMENT OF THE UNITED STATES 

The political party is a voluntary association and has no 
authority like that exercised by Government; yet it has an 
organization of its own, which embraces committees for 
local, or county, interests, committees for State interests, 
and a national committee for the direction of the party's 
national affairs. The county committee consists of one or 
more members from each township, and from each ward of 
the cities. The members of the county committee are 
selected or appointed by a county convention of members 
of the party. The county convention determines, more- 
over, of how many members the county committee shall 
consist. The officers of the county committee are a chair- 
man, a secretary, and a treasurer. It is the duty of this 
committee to assist in carrying out the party policy; to 
fix dates and places for holding county conventions; to 
collect and disperse funds for defraying expenses of election 
campaigns, and to procure and distribute pamphlets and 
papers in advocacy of party interests, and to provide for 
political meetings. 

By allying himself with a political party, and working 
for its interests, the citizen may, perhaps, become the repre- 
sentative of his township, or ward, in the county com- 
mittee; and by virtue of this position he comes to be con- 
sidered a party leader in his township or ward. In this 
capacity he becomes the local manager of the party's affairs. 
He calls to order the primary, and has more or less influence 
in determining its action. The primary is a meeting of the 
members of the party in the township or in the smallest 
political division. It is held for the purpose of nominating 
officers to be voted for at an approaching election, or of 
naming delegates to a larger party convention. There is 
a certain distinction between a primary and a caucus, but 
it is not always maintained in practice. A caucus is a 
meeting of members of a party to decide on measures or 
persons to be presented for the consideration of the body 



THE CITIZEN IN RELATION TO THE GOVERNMENT 335 

that has the right to take definite action. If a primary is 
held to appoint delegates to a convention, a caucus may be 
called to draw up a list of names to be voted on by the 
primary. The caucus may consist of a part or all of the 
members of the primary. The list of names to be presented 
is called a "slate." Sometimes a "slate" is prepared and 
presented by a very few persons instead of by a numerously 
attended caucus. The primary itself, inasmuch as it is a 
meeting to present candidates to be voted for by another 
body or by the voters of a town or other district, may be 
called a caucus. 

Delegates are persons appointed to represent the party 
members residing in the township or any other district that 
is individually represented in the convention. They act 
as agents of the voters. Sometimes resolutions are passed 
instructing them; but, if they have no such instructions, 
they vote in the convention as they please. The primary 
nominates party candidates for township or precinct offices; 
but candidates for county or State offices are nominatea 
by conventions composed of delegates from subordinate 
districts, such as towns or counties. 

Topics. — Choice of party. — Nature of a political party. — 
County, State, and national party committees. — The county con- 
vention. — The primary. — A caucus. — Delegates to a convention. 

References. — Macy, Political Parties in the United States; 
Fiske, Civil Government, 128, 129, 255, 273, 274. 

186. The County Convention. — If several persons are 
chosen at a primary as delegates to a county convention, 
these persons constitute the delegation from the town or pre- 
cinct where they are chosen. The chairman of the delega- 
tion carries a written statement signed by the chairman 
and secretary of the primary, which is evidence that the 
persons named have been chosen delegates to the convention. 
This writing constitutes the credentials of the delegation. 



336 THE GOVERNMENT OF THE UNITED STATES 

The chairman of the county committee calls the con- 
vention to order at a time previously fixed. Three com- 
mittees are then appointed : one on organization and order 
of business; one on credentials; and one on resolutions, 
these committees are sometimes appointed by the chairman 
and sometimes by vote of the delegates. While the com- 
mittees are preparing their reports, the convention either 
takes a recess or listens to speeches. In the latter case an 
opportunity is presented for the ambitious delegate who is 
at the same time an effective speaker to win the favor of the 
convention, and thus attain a more conspicuous place in 
his party. The committee on credentials receives the 
credentials of the delegations from the several townships, 
wards, or precincts; and in case there are no rival claimants, 
the persons named in the credentials will be accepted. But 
if each of two groups claims to be the proper delegation 
from a certain township or ward or precinct, the committee 
will recommend the acceptance of the delegation which, from 
its credentials, appears entitled to seats in the convention. 

The proceedings in the convention are held under 
an order of business recommended by the committee on 
organization and order of business. These proceedings 
usually cover the following points : 

1. The temporary officers of the convention are made 
permanent, or other persons are elected as permanent 
officers. 

2. The report of the committee on credentials is con- 
sidered. 

3. The nomination of candidates for the various offices 
in question is made. If it is the purpose of the convention 
to appoint delegates to a higher party convention, a vote 
is taken on a list of such delegates. 

4. The committee on resolutions reports. 

5. A new county committee is appointed. 

6. The convention adjourns. 



THE CITIZEN IN RELATION TO THE GOVERNMENT 337 

In conducting a county convention, as in conducting 
practically all other public meetings, the rules of procedure 
laid down in parliamentary law are observed. 

Topics. — Delegation to a county convention. — Procedure of 
the convention. — Order of business. 

References.— Macy, Political Parties, 36; Smith, Training for 
Citizenship, 256-266; Dallinger, Nominations for Elective Office, 
Index. 

187. The Party and the Government. — There is a certain 
similarity between the organization of a party and the 
organization of a republican government. Both have their 
primary, secondary, and supreme assemblies. The local, 
county, State, and national committees may be likened to 
the small bodies of executive officers in the town, the county, 
the State, and the national Government. A noteworthy 
difference between the party organization and the Govern- 
ment organization is seen in the fact that the action of the 
Government officers or assemblies is binding on all persons 
within their respective jurisdictions; while the action of the 
party committees or assemblies binds no one legally. The 
purpose of the party is to put persons into the offices of 
the Government who will carry out the policy of the party. 
The purpose of the Government is, in theory, to carry 
out that policy which will bring to the communities subject 
to its jurisdiction the maximum of advantage; in practice, 
it is to carry out the wishes of the dominant party. At 
this point the party becomes merged in the Government. 
Thus we see that the real design of the party is to put some 
of its members into the offices of the Government, and 
through them to make its policy the policy of the Govern- 
ment. 

Topics. — Similarity of party and Government organizations. — 
Difference of power. — Purpose of party and purpose of Government. 
— Party merged in the Government. 



338 THE GOVERNMENT OF THE UNITED STATES 

References. — Macy, Political Parties, 1-73; Dallinger, Nomi- 
nations for Elective Office; Ford, The Rise anal Growth of American 
Politics, 90-106, Index. 

1 88. Party Organization in a State. — At the head of the 
party organization in a State stands the State central com- 
mittee, which is formed by different methods in different 
States. In Massachusetts it consists of one member from 
each senatorial district. In New York the Democratic State 
committee is chosen by the State convention. In many 
States the members of the State committee are elected by 
the county conventions. The State committee exercises 
general control over the party affairs of the State. It calls 
the State convention of the party, and at the same time 
names the time and place of the meeting. The first State 
convention of New York was called in 1824. In fixing the 
membership of this convention, it was provided that each 
county should send as many delegates as it had members 
in the legislature. Prior to calling this convention, the 
State officers had been nominated by a State legislative 
caucus. This, however, had encountered an opposition 
similar to that directed against the congressional caucus, 
and both were overthrown about the same time. The last 
legislative caucus in New York was held in 1824. After the 
convention system of nomination was inaugurated in New 
York, the legislative caucus continued to nominate the 
party candidates for the United States Senate. In the other 
States there was effected essentially the same transition 
from the legislative caucus to the State convention as in 
New York. 

Different methods are employed in different States in 
appointing delegates to State conventions. The State con- 
vention is usually called to order by the chairman of the 
State committee, who acts as temporary chairman of the 
convention. The secretary of the State committee, acting 



THE CITIZEN IN RELATION TO THE GOVERNMENT 339 

as temporary secretary of the convention, reads the call 
for the convention. On motion by some member of the 
convention who has been previously agreed upon, the chair- 
man appoints committees on credentials, on permanent 
organization, and on resolutions. The speech of the per- 
manent chairman is expected to be the opening of the State 
campaign. The " platform " is read by the chairman of the 
committee on resolutions. One section or " plank " usually 
condemns or commends the national administration. The 
commendation will naturally come from the convention of 
the party in power, while the convention of the opposite 
party will quite as naturally find grounds for condemnation. 
Then follow the balloting for candidates, and the idle 
motions by the friends of the defeated candidates to make 
the nominations unanimous. 

The business of the State convention differs from that 
of the national convention in that it usually includes the 
nomination of a larger number of candidates, owing to tl^ 
fact that the national judicial and administrative officers are 
almost all appointed, while many of such officers in the 
States are elected. 

Topics. — State central committee. — Legislative caucus. — Tran- 
sition to convention.— Procedure of State convention. — Difference 
in the business of the State and national conventions. 

References. — Dallinger, Nominations for Elective Office, 74- 
90; Ford, The Rise and Growth of American Politics, 72-325; Macy, 
Political Parties, 57-73. 

189. The National Convention. — Several of the early 
nominations for the presidency were made by the congres- 
sional caucus. This was a meeting of the members of the 
two houses of Congress belonging to one political party. 
Such a caucus was held in 1800. From 1804 to 1824 meet- 
ings of this kind were the recognized agencies for making 
presidential nominations. They met, however, vigorous 



340 THE GOVERNMENT OF THE UNITED STATES 

opposition. They were regarded as oligarchical, and as 
placing in the hands of party representatives functions that 
should be exercised by the whole body of the party. 

With the fall of the congressional caucus the State 
legislatures in their official capacity made nominations for 
the presidency. But this method was neither popular nor 
long continued. Then appeared a joint caucus of the party 
members of the two branches of the State legislature. 
But this was only a makeshift, one of several methods tried 
in the transition from the congressional caucus to the 
national convention, all of which were unsatisfactory and 
emphasized the need of a national system of nomination. 

The first call for a national nominating convention was 
issued in 1830. In obedience to this call delegates met in 
Baltimore in September, 1831. During the next few years 
the method of nomination by national convention was fully 
established. The call for such a convention is now issued 
by the national committee, a body representing the national 
interests of the party, the members of which are chosen by 
each national convention and hold their positions for four 
years. It is the highest of the several grades of committees 
which embrace national, State, district, county, and local 
committees. The delegates, or members of the convention, 
are chosen, two for each congressional district, and four at 
large by the State convention of the party. In the Demo- 
cratic Party the choice of all the delegates is still made in 
some instances by the State party convention. There are 
two steps in the process of choosing the delegates by con- 
gressional districts: (1) The voters in the various cities and 
towns choose delegates to conventions for each of the con- 
gressional districts; (2) each district convention elects two 
delegates to the national convention, the State convention 
choosing the four delegates at large. 

As soon as the delegates to the national convention 
are chosen, efforts are made to have them pledged for cer- 



THE CITIZEN IN RELATION TO THE GOVERNMENT 341 

tain proposed candidates. At the convention city, a local 
committee, through its various subcommittees, has made 
arrangements concerning a hall for the meetings, hotels, 
transportation, music, telegraphing, the press, the reception, 
entertainment, and whatever else may be necessary for the 
accommodation of members or for facilitating the work of 
the convention. The national committee has arranged the 
programme. At the appointed time a temporary chair- 
man calls the convention to order; the rules of the preced- 
ing convention are adopted; committees are appointed on 
credentials, on permanent organization, on rules, and on 
resolutions. The report of the committee on credentials, 
when made, determines who are entitled to seats in the 
convention. This point being established, the permanent 
chairman takes the chair and makes a carefully prepared 
speech. While waiting for the report of the committee on 
resolutions, the miscellaneous business of the convention is 
transacted, after which the "platform" is read. This wa% 
at first called "Address to the People of the United States." 
Following this, an opportunity is given, by calling the roll 
of the States, for the several delegations to present their 
candidates. Here follow the nominating speeches, scenes 
from pandemonium, or displays of extemporized enthusi- 
asm for the nominees, the selection of the presidential can- 
didate, and finally, generally in an anticlimax of enthusiasm, 
the nomination of the candidate for Vice-President. The 
convention then, by vote, empowers the national committee 
to fix time and place for the next national convention, orders 
the printing of its proceedings, thanks the citizens of the 
dty for their hospitality, and adjourns. 

Topics. — Congressional caucus. — Transition to national con- 
vention. — National committee. — Procedure of the convention. 

References. — Dallinger, Nominations for Elective Office, 13-87; 
See the Proceedings of the various national conventions. 



342 THE GOVERNMENT OF THE UNITED STATES 

190. The Campaign. — A convention held by the other 
party also nominates candidates for the same offices. Then 
follows the struggle of each party to secure a sufficient 
number of votes to elect its candidates. The two parties 
through their organizations do whatever is possible to 
advance the interests of their respective candidates; but 
the candidates themselves are expected to look after their 
own interests and get votes for themselves by the use of 
any or all of the means known to the art of politics. This 
contest is known as a political campaign. The political 
convention held in the county, and the campaign which 
follows it, are types of the conventions and the campaigns 
which are employed for the nomination and election of 
State and national officers. But money is required to 
carry on even a peaceful campaign; and in order to meet 
the necessary expenses, the candidates are expected to 
make liberal contributions. Some candidates are able to 
do this without inconvenience, but others find it burden- 
some. Property may, perhaps, have to be mortgaged. 
Once in office with a low salary, there appear temptations 
to accept illegitimate gains to compensate for the expenses 
of election. After a period the shifting will of the people 
causes the elected officer to be superseded; and he returns 
to private life, sometimes to find that his neglect of his 
business or his profession has rendered it necessary to make 
a new beginning. 

When the time set for ending the voting has been 
reached, the proper officers count the votes that have been 
cast and record the result. Where one party is much more 
numerous than the opposition, no difficulties are likely to 
arise. But when the two parties are of nearly equal strength, 
the candidate who is reported as defeated may think it 
worth the while to question the report. Recognizing that a 
slight error discovered in the counting might change the 
decision, he demands a recount. In such a case the ballots 



THE CITIZEN IN RELATION TO THE GOVERNMENT 343 

are collected from all the precincts of his district and care- 
fully inspected and recounted under such guarantees of 
honesty and accuracy as the Government may provide. 
The board of canvassers who act in this case may make a 
report, but either candidate may appeal to the courts. In 
case the election is for a member of a legislative body, it 
remains with that body to consider the contested election 
and to render a final decision. 

Topics. — A political campaign. — Contributions to campaign 
expenses. — Counting the vote. — Contested elections. 

References. — Smith, Training for Citizenship, §§ 255, 268. 

191. Acquiring Government Land. — If a citizen wishes 
to acquire land owned by the United States, he finds that 
this may be done under the Homestead Laws, under the 
Preemption Laws, or under the Timber Culture Act. 

1. Under the Homestead Laws, if he is twenty-one years* 
old, he may claim 160 acres of the unsold land of the United 
States, provided he is not already the owner of this amount 
of land in any State or Territory. Before he can acquire 
a title to the land he must enter it in the proper land office, 
live on it continuously for five years, and pay the charges of 
the land office. 

2. Under the Preemption Laws, if he does not already 
own 320 acres, he may settle upon a tract of 160 acres or 
less. Having built a house on the land, and lived on it 
for one year, he may purchase it for either $2.50 or $1.25 
per acre. The larger price is for land in the alternate 
sections along railroads where the other sections have been 
granted to the railroads. 

3. Under the Timber Culture Act, he may have the 
right to 160 acres of land valued at $1.25 per acre if he will 
plant ten acres of timber, or eighty acres at $2.50 per acre 
if he will plant five acres of timber. 



344 THE GOVERNMENT OF THE UNITED STATES 

Topics. — Methods of acquiring Government land: 1. Homestead 
Laws; 2. Preemption Laws; 3. Timber Culture Act. 

References. — Hart, Actual Government, 335-341; Smith, 
Training for Citizenship, §§ 64-73; Fiske, Civil Government, 81-88, 
263, 264. 

• 192. Real Property. — The citizen who has either inherited 
property or accumulated it by his trade or profession finds 
it composed of two kinds : real property and personal prop- 
erty. Real property is called also real estate. It includes 
land and whatever is made part of it or is attached to it 
by nature or man. Trees, water, minerals, houses, and all 
other permanent structures are embraced in real property. 
Water that rises outside the limits of one's land and flows 
in a stream through it is not the property of the owner of the 
land. He may use it to turn a mill as it flows along, but 
he may not exhaust the stream. Persons who own land 
on the stream below have also a right to use the water. 

Ownership of the soil carries wdth it the right to take 
the wild animals or game found on the land, subject to 
whatever regulations the Government may make as to the 
time when the killing of game is permitted. 

In speaking of the ownership of land in the United States, 
we usually mean that full ownership presumed in the title of 
fee simple — a title which confers an unrestricted power of 
alienation. Land held under this title passes to one's heirs 
like any other property. Besides this absolute ownership, 
land is sometimes held for brief periods in consideration of 
paying a certain annual rent, sometimes for the period of 
one's life, and sometimes for a long definite period, as for 
ninety-nine years. 

In some of the States a distinction is made between 
property acquired before marriage and property acquired 
after marriage. Property acquired before marriage is 
called separate property; that acquired after marriage is 



THE CITIZEN IN RELATION TO THE GOVERNMENT 345 

called community property. Community property em- 
braces all property acquired by the husband, wife, and 
children while living together after marriage. 

In transferring real property a deed is given by the seller 
to the buyer. A deed is a document describing the property 
in question and certifying that it is transferred from one 
person to another, both of whom are named in the document. 
After a deed has been properly signed, not only by the seller, 
but also by his wife, in case he is married, it is recorded in 
books kept for that purpose in the office of the recorder. 

Sometimes the owner of land needs money, but does not 
wish to sell his land. In this case he borrows money and 
pledges his land or some part of it as security. He does 
this by giving to his creditor a note and a mortgage. A 
mortgage is a document by which property is conveyed as 
security, under the condition that it shall become void on 
the payment of the debt thus secured. It accompanies th% 
note which contains the promise to pay. If the money 
borrowed and the interest agreed upon are not paid at the 
time specified, the creditor may foreclose the mortgage. 
Under this process the land is sold and the debt is paid 
from the proceeds of the sale. If the proceeds of the sale 
are not sufficient to pay the debt, the creditor has still a 
claim on the debtor. If by the sale more is received than 
is required to pay the debt, the excess goes to the debtor. 

It may happen, however, that the person giving his note, 

or promise to pay, either for money borrowed or for goods 

received, may not wish to convey his property under a 

mortgage as security. In that case he may seek to secure 

his note in some other manner. He may, perhaps, find a 

person who is known to have a sufficient amount of property, 

and who may be willing to guarantee that the note will be 

paid. This person is said to indorse the note. He writes 

his name on the back of it, or sometimes under the name of 

the person who signed it originally. By thus indorsing it, 
23 



346 THE GOVERNMENT OF THE UNITED STATES 

he promises to pay it if the debtor fails to do so. The 
creditor may be willing to accept a note thus indorsed 
instead of a mortgage. 

Such a note, or a written promise to pay, is called a 
promissory note; and, when indorsed, it carries two prom- 
ises: that of the original signer and that of the indorser. 
The person who gives his note gives it as a promise to pay 
money he has borrowed, or to pay for valuable goods 
he has received. In either .case he has in his possession 
property that he may use for gain. Because he can employ 
it for gain, he can afford to pay the creditor a certain amount 
for the use of it. What he pays in this case from month to 
month or from year to year for the use of the money bor- 
rowed or the goods received is the interest. He can afford 
to pay it, because by using the money or the goods he can 
gain more than he pays. The creditor is willing to accept 
the interest rather than to have his money and use it in any 
other practical way, because he is spared the trouble of 
business. 

Topics. — Two kinds of property. — Water rights. — Game. — ' 
Forms- of title. — Separate property and community property.—' 
Transfer of real property. — -Mortgage and foreclosure. — Indorse'' 
ments. — Reason of interest. 

References. — Kent, Commentaries, ii, 230, 325-340; iii, 401; 
37-39; iv, 438; Smith, Training for Citizenship, §§ 124-136, 247. 

193. Personal Property. — Personal property includes a 
long list of objects: clothing, food, tools, books, furniture, 
money, and all kinds of valuable things not embraced under 
the designation of real property. Personal property is 
sometimes called movable property, because the owner 
may take it with him. Speaking generally, the title to real 
property is shown by deed or by the public record, while 
the title to personal property is shown by possession. It 
is, however, sometimes possible for one to prove that he is 



THE CITIZEN IN RELATION TO THE GOVERNMENT 347 

the owner of a certain object which is in the possession of 
another person; and it might be possible to show ownership 
in a piece of land, although all records of its transfer had 
been destroyed. 

Topics. — Definition of personal property. — Title to personal 
property. 

References. — Smith, Training for Citizenship, §§ 38, 39, 114, 
125, 137, 138, 139, 169; Kent, Commentaries, ii, 3-16, 499; Hart, 
Actual Government, 385-392, 409, 410. 

194. Transfer of Property by Lease. — All property of 
whatsoever kind may be transferred from one person to 
another in various ways. It may be given away or, on the 
death of the owner, pass to heirs under the law of inherit- 
ance. It may be sold, or it may be leased. 

A lease, as applied to land, is a contract by which the 
possession and profits of real estate for a definite period are 
passed from one person to another. The person who re-% 
ceives the property for the term specified makes compensa- 
tion to the owner in either money or services, or in com- 
modities. Leases are made for short periods or long periods, 
or during the life of the tenant. The person who has re- 
ceived the property is called the tenant, or lessee. Unless 
there is something in the agreement with the owner prevent- 
ing it, the tenant, or lessee, may sublet the whole or a part 
of the property that has been transferred to him; but the 
term for which he sublets it must not be extended beyond 
the end of the period for which he has received it. If a 
person holding property under a lease for a number of years 
— say, for ten years — sublets it for twenty years, this lease 
is not valid for the whole period, but only for ten years. 
Sometimes a lease is made for a definite number of years, 
and the lessee, by an agreement with the lessor, acquires the 
privilege of. renewal. Thus, to illustrate, the lessee may 
hold a lease for a period of five years; and included in the 



348 THE GOVERNMENT OF THE UNITED STATES 

terms of the lease there may be a provision that he shall have 
the privilege of renewing the lease at the expiration of the 
first period. 

Topics. — Methods of transferring property. — Lease. — Terms of 
leases. — Subletting. — Renewal. 

195. Contract of Sale. — A sale is a contract for the 
transfer of the ownership of property, or for the transfer of 
the right of property in a commodity, for a price to be paid 
in money. When the valuable thing given for the com- 
modity is not money but some other commodity, we call the 
transaction barter. But a sale in its broadest sense includes 
both sale and barter as here defined. The thing sold must 
be capable of being passed from the exclusive possession 
of one person to the exclusive possession of another person. 
If at the time of the agreement the property which it is 
proposed to transfer has been destroyed without the knowl- 
edge of either of the parties, it is to be considered that no 
sale has been effected. 

The thing sold need not necessarily be a material object: 
it may be immaterial property, like the relation of a business 
to the public; for example, the relation of a newspaper to 
its patrons — its subscribers and advertisers. A contract of 
sale becomes binding by the mutual consent of both parties 
to it; that is, when both parties have agreed to its terms. 
If one person makes an offer of an article or a certain piece 
of property to another person for a stated price, there is 
no contract until the second person shall have accepted the 
offer. By this acceptance the contract is completed. 

When the parties have agreed on the terms of the sale, 
the right of property passes from the seller to the buyer. 
The sign or evidence that such an agreement has been 
reached is sometimes the delivery and acceptance of the 
article sold, and sometimes the delivery and Acceptance of 
papers that represent the property transferred. It is easy 



THE CITIZEN IN RELATION TO THE GOVERNMENT 349 

for the seller to deliver into the hands of the buyer a pair of 
shoes; but it is not so easy to deliver in the same way an 
ocean steamship or a thousand acres of land. It is in such 
cases as these latter that papers recording the fact of the 
sale are transferred. In the case of a sale of land, a paper 
called a deed passes from the seller to the buyer. 

It is held by writers on morals that it is the duty of the 
seller to disclose any defects known to him in the articles 
to be sold. But in general the common law adopts the 
attitude toward selling and buying that is indicated by 
the phrase, Caveat emptor, Let the buyer beware. If the 
seller "intentionally misrepresents a material fact, or pro- 
duces a false impression by words or acts, in order to mis- 
lead, or to obtain an undue advantage, it is a case of mani- 
fest fraud"; 1 and the common law affords a reasonable 
protection against fraud in dealing. 

Topics. — Definition of sale. — What transferred. — Evidence of 
sale. — Caveat emptor. V 

196. Gifts and Bequests. — Property may be transferred 
from one person to another not only by lease or sale, but 
also by gift or bequest. By gift, property is conveyed 
by the owner to another person without compensation. A 
gift becomes valid on the delivery of the object which it is 
proposed to transfer. A mere promise to give is not giving; 
there must be an actual delivery of the object, or a transfer 
of papers recording the act of donation. At any time prior 
to the delivery or transfer, the owner may change his in- 
tention and refuse to complete the gift. A gift, like a con- 
veyance made for a consideration, may be annulled if it can 
be shown that the donor was subject to undue influence at 
the time of making the donation. When gifts have been 
made complying with the conditions necessary for the per- 
fected transaction, they are generally irrevocable. But 

1 Kent, Commentaries, ii, 484. 



350 THE GOVERNMENT OF THE UNITED STATES 

when they are made for the purpose of defrauding creditors, 
they are void and may be set aside. However, it is often 
difficult to prove that a donor in making a gift intended to 
commit fraud; yet when he knows that the sum of his debts 
is greater than the value of his property, it is safe to con- 
clude that, if he makes large gifts, they are made with 
fraudulent intent. 

Besides gifts from living persons to living persons, gifts 
or bequests may be made by a last will and testament to 
take effect after the death of the testator. This document, 
signed by the testator, provides directions for a distribution 
of his real and personal property after his death, and in- 
dicates the amount to be received by each of the designated 
persons. 

Topics. — Nature of a gift. — Gift when valid. — Gifts for defraud- 
ing creditors. — Bequests. 

197. Governmental Protection. — In seeking to protect 
his person and his property the individual citizen turns for 
assistance to the Government. The assistance in such a 
case is given by the courts. If his property is stolen, the 
courts will condemn the thief to be punished. If he sells 
goods or loans money, and the debtor refuses to pay him at 
the appointed time, the courts will assist the creditor in 
collecting what is due him. If his person or his reputation 
is injured by an enemy, he turns to the courts for redress. 
The law, however, does not oblige one to do all those things 
he ought to do. If a man makes an oral contract to sell a 
piece of land, or to pay the debt of another person, or to 
purchase a large amount of personal property, an amount 
valued at more than $50, he is morally bound to keep his 
promise, but the Government will not compel him to do it. 
As the law usually requires that all such contracts shall be 
in writing in order to be legally binding, the courts will not 
enforce contracts made orally relating to those things. 



THE CITIZEN IN RELATION TO THE GOVERNMENT 351 

Topics. — Recourse of the individual citizen for protection. — 
Moral and legal obligations. 

References.— Kent, Commentaries, ii, 3-16; i, 107, 254. 

198. A Civil Case. — Civil cases arise generally out of 
disputes about property. They embrace all actions at law 
between persons in their private capacity, not involving 
prosecution for crime. They are brought to enforce the 
payment of debts, to collect compensation for injury to 
one's character, person, property, or reputation, or to set- 
tle questions relating to the ownership of property. Civil 
cases not involving debt or damage in excess of $100 are 
usually tried in the justice's court. Where the amount 
involved is between $100 and $300, the plaintiff — that is, 
the person who brings the suit — may begin the case before 
the justice's court or before the higher court. The case 
having been instituted, the justice causes the defendant, 
the person against whom the suit is brought, to be summoned 
to appear in the court at a time mentioned in the summonl, 
in order to answer the suit introduced by the plaintiff. If 
the defendant does not appear in accordance with the sum- 
mons, the judgment will be rendered against him. 

In order that the justice may have the necessary infor- 
mation on which to base a decision, it is usually necessary 
to bring witnesses into court to testify, or to furnish the 
required information. Under such circumstances an order 
is issued, signed by the justice, commanding the person 
named to appear in court at the time specified. This order 
is called a subpoena. The person to whom it is directed is 
obliged to obey it or be punished for contempt by the court. 
The trial proceeds either before the justice alone or before 
the justice and a jury. The plaintiff, assisted by his wit- 
nesses and his lawyer or lawyers, presents the facts and argu- 
ments which seem to support his contention. Answer is then 
made in substantially the same manner by the defendant. 



352 THE GOVERNMENT OF THE UNITED STATES 

When there is a jury in the lower court it renders its 
verdict with respect to both the law and the facts. In the 
higher court, the judge charges the jury — that is to say, 
he states the law applicable to the case — and impresses upon 
the jury its obligation to decide, from the evidence pre- 
sented by the witnesses, what are the facts in the case. 
When the jury of the higher court has reached a conclusion, 
it delivers it to the judge. This conclusion or opinion of 
the jury is called its verdict. On the basis of this verdict 
the judge renders his judgment. When there is no jury, 1 the 
decision is given by the justice on his own view of the law 
and the facts as presented. 

When the defeated party is dissatisfied with the judg- 
ment and believes that a new trial would give a different 
result, he appeals to a higher court. Before this higher 
court, at an appointed time, the case is tried again in 
essentially the same way as in the court where it was first 
presented. When a final judgment has been reached, the 
next step is to secure its execution. If the judgment is 
that money shall be paid by the defendant to the plaintiff, 
the defendant is ordered to pay the amount specified. If 
this is not done, an officer of the court is commanded to 
seize property belonging to the defendant, sell it, and 
bring the money to the justice within a specified number of 
days. The justice then pays the plaintiff and the legal 
charges of the court, or the costs, and turns over the balance 
to the defendant. In case an appeal is taken, an execution 
follows only after the conclusion of the final trial and the 
rendering of the final judgment by the court to which the 
case has been appealed. 

Topics. — The nature of civil cases. — The method of insti- 
tuting them. — Witnesses and the subpoena. — The jury. — An 
appeal. — The judgment and the execution. 

1 See § 200. 



THE CITIZEN IN RELATION TO THE GOVERNMENT 353 

199. Crimes. — The acts of the individual citizen are, 
with few exceptions, voluntary acts. There is thus always 
before some of the citizens the possibility of falling into 
crime, or of doing something forbidden by law. If a citi- 
zen commits an offense for which the law fixes a light 
penalty, the crime is called a misdemeanor. Offenses of a 
graver nature involving the death penalty or imprisonment 
are called felonies. If the offender aims to overthrow the 
Government, to levy war against it, or to give aid and 
comfort to its enemies, the crime is treason. If, having 
been duly summoned to testify before a court, a person 
swears willfully and falsely in a matter of grave importance, 
the crime thus committed is perjury. The willful killing 
of a human being is murder; but there are circumstances 
under which the killing of a man is not a crime. If it is 
done by accident, or by a person not of sound mind, or in 
self-defense, the act will not merit punishment. If one is 
guilty of burning another person's dwelling house, or other 
structure, or his own house when insured, the act is called 
arson. 

Topics. — A misdemeanor. — Felony. — Treason. — Murder. — Ar- 



200. A Criminal Case. — If a person under the Govern- 
ment commits a crime, it is expected that he will be arrested 
and brought before a court for trial. In case the crime is 
a minor offense, a misdemeanor, he may be tried before 
a justice of the peace, in what is termed a justice's court. 
But if the crime is of a graver sort that may be termed a 
felony, the person accused is arrested and brought before the 
justice for a preliminary examination. If the justice thinks 
the person arrested is guilty, on the basis of the evidence 
presented in the preliminary examination, he orders him 
held for trial by a higher court. The prisoner is then com- 
mitted to the county jail to await his trial in the county, or 



354 THE GOVERNMENT OF THE UNITED STATES 

superior, court. During this period he may be released 
from the confinement of the jail, provided he will give a 
bond guaranteeing his appearance at the time set for his 
trial. The bond must be signed by two responsible persons, 
who are bound to pay the amount specified in the bond, 
which is called bail, in case the prisoner fails to appear at 
the appointed time. The arrest is made under a warrant, 
or order, signed by a justice, directing a constable or other 
officer to make the arrest. If the crime for which the person 
is arrested is a capital offense, like murder, and there is a 
strong probability that the person arrested is guilty, bail will 
not be accepted, and the prisoner will be held in jail until his 
trial. At the time set in the bond, the prisoner is brought 
before the court and there tried. If he is found to be guilty, 
the judge orders him to stand up, and then asks him if he 
knows any reason why sentence should not be pronounced 
upon him. After he has had this last opportunity to answer, 
the judge tells him what punishment he is to receive. This 
is called his sentence. The prisoner thus convicted and con- 
demned is led away by the officers to undergo the punishment 
that has been imposed in accordance with the law. 

Topics. — Process in a criminal case. — Bail. — When bail will not 
be accepted. — The sentence. 

201. Public Charity. — The government has not done its 
whole duty to the citizens when it has taken possession of 
criminals and prevented them from preying upon the com- 
munity, or upon unoffending members of it. In modern 
times the unfortunates, those who fail in the struggle for 
existence, are taken under the special protection of the 
state. In this class are the hopelessly poor, and the helpless 
orphans; also the insane, the feeble-minded, and other 
defectives who have no means of support. 

When one's efforts have failed, and his strength and 
courage are gone; when he is without friends or relatives who 



THE CITIZEN IN RELATION TO THE GOVERNMENT 355 

are able and willing to support him, he finds that the 
government has made arrangements under which he may- 
be cared for at the public expense. These arrangements 
are made sometimes by the town government, sometimes 
by the county government. The poorhouse is one of the 
established institutions of the New England town. It is 
under the general control of three or more overseers of the 
poor. When the support of the poor is undertaken by 
the county, this support is usually rendered under the 
supervision of a subordinate county board, or poor com- 
mission. 

The insane are usually cared for in larger institutions 
supported by the State, and carried on by officers appointed 
by the State government. The need of employing learned 
physicians and expert attendants makes it advisable to 
gather the insane persons into large establishments instead 
of undertaking to treat them in the several towns where 
they have been accustomed to reside. Sometimes the ex- 
penses of maintaining the patients are paid by the towns 
sending them; in other cases the whole expense of main- 
taining the asylum is borne by the State at large. In these 
instances no attempt is made to assign the cost to the towns 
making use of the institution for the care and treatment 
of their insane. 

Institutions for the instruction of the deaf, dumb, and 
blind, when established and supported by a State, are to 
be regarded as a part of the State's undertaking in behalf 
of education. But when homes are provided at the pub- 
lic expense for the mature but helpless blind, these in- 
stitutions may be regarded as part of the system of public 
charity. 

Topics. — Relation of the State to the helpless and the de- 
fective. — The support of the poor. — The insane. — The deaf, dumb, 
and blind. 



356 THE GOVERNMENT OF THE UNITED STATES 



FOR ADVANCED STUDY 

Suffrage. — Hinsdale, American Government, Chap. LIV; Hart, 
Practical Essays, No. 11; Wilcox, Study of City Government, §§ 61- 
72; Foster, Commentaries, §§ 50-59; A. de Tocqueville, Democracy 
in America, i, Chaps. IV, XIII; Political Science Quarterly, 13 : 495- 
513; Bryce, American Commonwealth, i, 406, 712; ii, 67, 477; Chap. 
XCVI. 

Methods of Nomination for Elective Office. — Bryce, 
American Commonwealth, ii, Chaps. LXIX-LXXIII; Dallinger, 
Nominations for Elective Office; Wigmore, Australian Ballot Sys- 
tem; Lawton, Caucus System; Whitridge, Caucus System; National 
Conference for Good City Government, Proceedings, 1901. 

Elections. — O'Neil, American Electoral System; McKnight, 
Electoral System; Commons, Proportional Representation; Eaton, 
Government of Municipalities, Chaps. II, IX; Giddings, Democracy 
and Empire, Chaps. XII, XV; Bryce, American Commonwealth, ii, 
Chaps. LXVI, LXVII ; Jennings, Eighty Years of Republican Gov- 
ernment, Chaps. VII, VIII. 

Democracy. — Godkin, Problems of Modern Democracy, 1-98, 
199-225, 275-311; Giddings, Democracy and Empire, Chaps. I-VI, 
XV, XVI; Borgeaud, Rise of Modern Democracy; Eliot, American 
Contributions to Civilization, Nos. 1-6 ; Lowell, Essays on Govern- 
ment, Nos. 2, 4; Moses, Democracy and Social Growth; Baldwin, 
Modern Political Institutions, Chap. II; Jefferson, Writings, i, 
1-110; American History Leaflets, No. 18. 

The Control and Disposal of the Public Lands. — Hins- 
dale, Old Northwest, Chap. XIV; American History Association, 
Papers, i, 79-247; v, 395-437; hi, 411-432; Johns Hopkins Uni- 
versity, Studies, iv, Nos. 7-9; Hart, Practical Essays, No. 10; Com- 
missioner of Public Lands, Annual Reports; Bureau of Forestry, 
Reports and Bulletins. 

Private Ownership of Land in the United States. — 

Cooley, Constitutional Limitations, Chap. XV; Washburn, American 
Law of Real Property; Lewis, Eminent Domain; Hopkins, Real 
Property; Eleventh Census, Extra Bulletins, No. 98. 



THE CITIZEN IN RELATION TO THE GOVERNMENT 357 

Political Parties. — Macy, Political Parties; Morse, History 
of Political Parties; Hammond, Political Parties in the State of 
New York; Ostrogorski, Democracy and the Organization of Political 
Parties; Smith, Liberty and Free-Soil Parties; Goodnow, Politics 
and Administration, Chaps. II, III, IX; Bryce, American Com- 
monwealth, ii, Chaps. LIII, LIV; Eaton, Government of Municipali- 
ties, Chaps. Ill, IV; Ford, American Politics, Chaps. VII, XXIII- 
XXV. 



CHAPTER XIV 

INTERNATIONAL RELATIONS 

202. Relation of the United States to Other Independ- 
ent States. — Hitherto attention has been directed to the 
organization of the governments which make up the political 
system of the United States. Little has been said con- 
cerning the relation of the Government of the United States 
to other governments; but a general consideration of this 
subject is made necessary by the close relations now existing 
between civilized nations. Although a sovereign state is 
said to be independent and to recognize no superior, it is 
nevertheless expected to regard other sovereign states as 
its equals; and the existence of a nation or of an individual 
person among equals imposes certain moral obligations 
that might not be taken account of in complete isolation. 
One may own the house in which he lives and the lot on 
which it stands, but he is morally bound to show in his 
conduct a decent regard for the wishes and the well- 
being of his neighbor. A nation that finds itself in the 
community of nations also is morally bound to show a 
decent regard for the wishes and the well-being of other 
nations. For regulating the intercourse of sovereign states, 
a body of rules and doctrine has gradually come into exist- 
ence and been recognized as a proper guide for civilized 
nations with respect to such actions as affect one another. 
This body of rules and doctrine is known as international 
law, although, speaking strictly, it is not law at all. Law 
358 



INTERNATIONAL RELATIONS 359 

in the proper sense of the word is " a rule laid down for the 
guidance of an intelligent being by an intelligent being hav- 
ing power over him." The rules which make up the body 
of international law do not conform to this definition; they 
are the result of mutual agreements or understandings among 
the nations, rather than commands. No nation is in a 
position to enforce obedience to them, yet it is agreed that 
such obedience tends to promote the general well-being and 
to remove international friction. They have been called 
the rules of international morality; and what they enjoin, 
they enjoin as a duty. 

Topics. — Relation of Government of United States to other 
governments. — Equality of sovereign states. — Definition of law. — 
Nature of international law. 

203. Certain Duties Recognized in International Re- 
lations. — Important among the duties recognized in inter* 
national relations is the duty of humanity. War continues 
and is likely to continue yet many decades; still the fact 
of war between two nations does not entitle either to wreak 
vengeance on a captured member of the other nation. War 
between civilized nations is not a war against individual 
persons, and such persons falling into the hands of the enemy 
of their nation are entitled to humane treatment. In view 
of the mutual dependence of nations because of the differ- 
ences of their soil, climate, and products, it is affirmed that 
an obligation rests upon every nation to enter into at least 
commercial relations with other nations. A strong nation 
is likely to hold this to be the duty of the weaker nations 
with whom it wishes to trade, particularly if these nations 
stand on a somewhat lower plane of cultivation. Western 
nations have held this to be the duty of certain Oriental 
states. In her attitude toward other nations, Japan saw 
fit to pursue a policy of strict non-intercourse from the 
beginning of the seventeenth to the middle of the nineteenth 



360 THE GOVERNMENT OF THE UNITED STATES 

century. She neither exported nor imported wares, and 
permitted neither immigration nor emigration. Western 
nations insisted on trading with her, and her policy was 
made to yield to their wishes. If there is a duty under which 
every nation lies, that obliges it to enter into relations with 
other nations, it is clearly a duty that admits of many ex- 
ceptions. The power of a nation to establish such customs 
duties as will practically exclude foreign wares does not 
appear to be seriously questioned; and there is not a very 
wide difference between this policy and the policy of com- 
plete commercial isolation. 

It is understood that when we speak of international 
relations we have in mind only such states as, by common 
consent, are counted as independent. Pirates controlling 
a large territory do not constitute a state. The common- 
wealth of New York, from the point of view of international 
law, does not appear a sovereign state, although more 
populous and wealthier than many sovereign states: it is 
not a party in international relations. International rela- 
tions exist only between sovereign states. 

Topics. — International duty of humanity. — War not against 
individual persons. — Is there a duty of commercial intercourse? — 
International relations between sovereign states only. 

204. Non- Interference. — When it is said that a sovereign 
state is independent, it is meant thereby, among other things, 
that it is free from interference by other states. This is 
the general rule, but there are justifiable exceptions. If a 
state is at war with another state, it may aid any party or 
province of the enemy which may be in revolt. When its 
stability and the well-being of the people are vitally affected 
by lawlessness permitted by its sovereign neighbor, it may 
insist that order shall be preserved, and may go even to the 
extent of forceful interference in behalf of self-preserva- 
tion. 



INTERNATIONAL RELATIONS 361 

A state in facing a serious revolt or revolution may call 
on a foreign state for assistance, and it is not questioned 
that the foreign state in rendering the required assistance 
is acting strictly within the limits of international propriety. 
If the revolutionists stand for liberal government against 
absolutism, and the nation called upon happens to be in 
sympathy with the political views of the revolutionists, 
it need not accede to the request. The view sometime 
entertained in Europe that the constituted governments 
might properly interfere without being asked, in order to 
suppress liberal revolts or republican revolutions, is not 
to be justified. The unfriendly attitude of the European 
powers toward the republicanism of France during the 
French Revolution furnishes a case in point. And at the 
Congress of Verona, in 1822, the project was agitated of 
bringing the revolted colonies of Mexico and South America 
back under the authority of Spain. This project was, 
moreover, significant in that it gave occasion for President^ 
Monroe's utterance which became the basis of the Monroe 
doctrine. 

Topics. — Meaning of national independence. — Duty of non- 
interference. — Attitude of European monarchies toward the French 
Revolution and the republicanism of France. 

205. The Monroe Doctrine. — President Monroe having 
requested Jefferson's opinion concerning the project of the 
Verona Congress and the correspondence between Mr. Can- 
ning, England's Prime Minister, and Mr. Rush, the American 
minister in London, Mr. Jefferson wrote that " our first and 
fundamental maxim should be never to entangle ourselves 
in the broils of Europe; our second, never to suffer Europe 
to meddle with cisatlantic affairs. America, North and 
South, has a set of interests distinct from those of Europe 
and peculiarly her own. She should, therefore, have a sys- 
tem of her own, separate and apart from that of Europe." 
24 



362 THE GOVERNMENT OF THE UNITED STATES 

In his message of December 2, 1823, President Monroe de- 
clared that " we should consider any attempt on the part 
[of the allied powers] to extend their system to any part 
of this hemisphere as dangerous to our peace and safety"; 
and that " we could not view any interposition for the pur- 
pose of oppressing [governments on this side of the At- 
lantic whose independence we had acknowledged] or con- 
trolling in any manner their destinies by any European 
power, in any other light than as a manifestation of an un- 
friendly disposition toward the United States." The doc- 
trine that has been developed on the basis of President 
Monroe's utterances has not become properly a part of in- 
ternational law; it, however, represents a part of the policy 
of the United States, and will probably not be interfered 
with if the Government of this country displays a proper 
determination to maintain it, and to refrain from interfer- 
ing in the affairs of Europe. 

Topics. — Origin of the Monroe Doctrine. — President Monroe's 
declaration. — Foreign policy of the United States. 

206. National Territory. — In the modern conception of 
a nation, there is involved not merely the notion of gov- 
ernment and people, but also the idea of territory. This 
territory must be strictly and carefully defined, since dis- 
puted boundaries lead almost universally to international 
friction, and sometimes to war. Territory is derived in 
various ways: 

1. By occupying land which was before vacant, con- 
firmed by prescriptive right. 

2. By establishing colonies and drawing lands gradually 
under their dominion by the various means employed in 
colonial extension. 

3. By conquest followed by prescriptive right. 

4. By purchase or by gift. 

The territory of a nation embraces: 



INTERNATIONAL RELATIONS 363 

1. The land within the boundaries as well as the interior 
seas, lakes, and rivers that lie wholly within these bound- 
aries. Lake Michigan, for instance, is a part of the territory 
of the United States. Sometimes the national territory is 
composed of two or more distinct tracts, each within its 
separate boundary. These separate tracts may be either 
islands or parts of the continental area. 

2. Mouths of rivers, bays, and estuaries. 

3. The seacoast to a distance of one marine league, or 
three miles from the land. 

Vessels belonging to the citizens and the public vessels 
of a given nation, on the high seas, have some of the attri- 
butes of national territory. Persons on the ship are sub- 
ject to the laws of the nation to which they belong until the 
ship comes within the jurisdiction of another nation. But 
public vessels, warships, and all other vessels owned. by the 
government and employed in its service, even if in a foreign 
port, are exempt from local jurisdiction. I 

Topics. — Need of definite boundaries for national territory. — 
Ways of acquiring territory. — What embraced in national territory. 
— Ships on the high seas. 

207. The Question of the Mississippi. — During the war 
between France and England in the latter half of the 
eighteenth century, France transferred Louisiana to Spain. 
At the close of the War of Independence, therefore, the 
lower Mississippi ran through Spanish territory. The Mis- 
sissippi valley was open to settlement from the Eastern 
States, and its population was increasing rapidly. Under 
these circumstances disputes naturally arose between the 
United States and Spain concerning the use of the stream 
for commerce. Then, by the treaty of San Lorenzo el 
Real, in 1795, citizens of the United States were granted 
the use of the river with the privilege of depositing and re- 
shipping at New Orleans the goods brought down from the 



364 THE GOVERNMENT OF THE UNITED STATES 

northern settlements. In the negotiations between the 
two powers concerning this question, "the United States 
had contended that there is a natural right belonging to the 
inhabitants on the upper waters of a stream, under whatever 
political society they might be found, to descend by it to 
the ocean." But the argument by which it was sought to 
maintain this position was not conclusive, and even the 
advocates of the claim of the United States admitted that 
the right was an imperfect one. 

By acquiring Louisiana and Florida, the United States 
came into possession of all the lands on both sides of the 
Mississippi from its source to its mouth; and no further 
question as to the control of the river arose. " Since then, 
the exclusive control of the river by the United States, so 
far as concerns foreign states, has been conceded internation- 
ally; though, subject to police supervision and to the right 
to impose pilotage and quarantine regulations, the free 
navigation of this and of other navigable rivers within the 
United States is, by the law of nations, accepted by the 
United States, open to all ships of foreign sovereigns." 

A similar question arose with respect to the St. Lawrence, 
from the British point of view. This was settled by the 
treaty of June 5, 1854. By this treaty the St. Lawrence 
River and the canals in Canada were thrown open to naviga- 
tion by citizens of the United States, who were accorded 
the same rights and privileges as the subjects of Great 
Britain. 

The Stikine, Yukon, and Porcupine rivers rise in British 
territory and flow through Alaska to the sea. Questions 
respecting their navigation were settled by the treaty of 
Washington in 1871, when they were opened to the service 
of both nations. 

Topics. — The Mississippi question. — Treaty of San Lorenzo, 
1795. — Question with respect to the St. Lawrence and other 
rivers. 



INTERNATIONAL RELATIONS 365 

208. A Nation's Attitude Toward Aliens. — It is hardly 
necessary to discuss the question whether or not a nation 
may properly withdraw itself from intercourse with other 
nations, since this policy, almost everywhere, has ceased 
to be entertained. Nations that formerly saw only dis- 
advantages in intercourse with foreigners find many ad- 
vantages when once the barriers have been removed. A 
necessary incident to this intercourse is the recognition of 
an obligation to afford the alien due protection within the 
limits of the state's jurisdiction. The alien may claim 
protection and considerate treatment under the general 
duty of humanity which should always control the state's 
actions with reference to individual persons. This protec- 
tion is due particularly: (1) To distressed foreigners, such as 
the survivors from shipwreck who have been cast upon the 
shore; (2) to persons innocently seeking a passage across 
the territory to some other land they wish to reach; (3) to 
persons traveling for pleasure or for the sake of gathering 
such information as in the opinion of the government may 
become public without detriment to the state. 

Aliens admitted to this country are subject to its laws, 
unless by law they are granted exemption in certain par- 
ticulars. This exemption is sometimes complete, amount- 
ing to what is known as exterritoriality. This applies es- 
pecially: (1) To sovereigns traveling with their trains; (2) 
to ambassadors, their suite, family, and servants; (3) to the 
officers and crews of public armed vessels in port, and to 
armies in case they are permitted to pass over territory be- 
longing to the nation. 

Sometimes Christian states have demanded that their 
citizens or subjects shall be exempt from the local courts 
when residing in certain Oriental countries. In such cases 
they are often permitted to reside only in certain specified 
parts of the country, which have been defined by treaties. 
When a crime has been committed by a member of the nation 



366 THE GOVERNMENT OF THE UNITED STATES 

enjoying this privilege, the criminal is tried before a court 
established at the consulate of the nation to which he belongs. 

Topics. — Protection due persons who are not citizens. — 
Position of aliens. — Exterritoriality. 

209. Extradition. — In the successful administration of 
justice, much depends on the attitude which nations assume 
toward one another as to the extradition of criminals. If 
the criminal knows that the government of the country in 
which he has taken refuge will not surrender him to the 
pursuing officers, the moral force of the law he has violated 
will be greatly diminished. It is, of course, competent for 
any nation to take this position and hold that it is not under 
any obligation to administer the criminal laws of another 
country, or to aid in administering them. It is, however, 
interested in rejecting as many criminal immigrants as it 
may find within its borders. A serious difficulty in the 
matter arises from the different definitions of crime that 
obtain in different countries. One government may demand 
a prisoner for punishment for an action which the second 
nation does not consider a crime meriting the proposed 
penalty. 

There appear to be two ways of dealing with this ques- 
tion: One is by requesting that, as a special favor, the 
government of the country in which the criminal has taken 
refuge deliver him up. This unregulated action may lead 
to the surrender of persons who ought not to be surrendered, 
such as political offenders. The other way is by forming 
treaties embracing international rules and descriptions of' 
the crimes for which extradition shall be had, and by de- 
manding the prisoners under the terms of the treaty with 
the nation in question. 

Topics. — Extradition of criminals. — State's attitude toward 
criminal immigrants. — Different views of crime. — Treaties provid- 
ing for extradition. 



INTERNATIONAL RELATIONS 367 

210. Reputation of Other States to be Regarded. — It is 

the duty of every state in communicating with other states 
to avoid all expressions that may be interpreted as insults, 
or may be considered as damaging to reputation. This 
applies to documents not intended to be sent out of the 
country, as well as to those addressed to governmental 
agents abroad and to foreign governments. The United 
States sent a secret agent to Hungary in 1850. The object 
of the mission was to determine whether it was probable 
that Hungary would gain her independence. The instruc- 
tions were published; and the expression, "iron rule," used 
to characterize Austria's control over Hungary, moved the 
Austrian Government to request Mr. Hulseman, the Aus- 
trian charge d'affaires in Washington, to make known its 
displeasure at the offensive language. In the correspond- 
ence which followed, the authorities of the United States 
affirmed that it was unavoidable that this nation should 
sympathize with a people struggling for independence, and 
" that a communication from the President to either house 
of Congress is regarded as a domestic communication, of 
which ordinarily no foreign state has cognizance." The 
conclusion drawn from the correspondence relating to this 
incident appears to be that a foreign nation may properly 
protest against expressions used in communications between 
the departments of a government; and, if injurious to its 
reputation, the foreign state may demand redress. 

Topics. — Communication between states. — Concerning inde- 
pendence of Hungary. — Foreign criticism of domestic communica- 
tions. 

2ii. Treaties. — It has already been stated that treaties 
to which the United States is a party are made by the 
President with the cooperation of the Senate. These are 
the constituted agents of the nation for treaty-making. 
Before a treaty can be made with another power, the prop- 



368 THE GOVERNMENT OF THE UNITED STATES 

erly authorized agents for this purpose in the foreign gov- 
ernment must be found. In the United States the power 
of the actual Government is limited by the Constitution; 
whence it follows that if a treaty is made by the Eresident 
and the Senate, which violates the Constitution, it is in 
so far invalid; for the determinations of the President or 
the Senate acting outside of power granted by the Constitu- 
tion have no more binding force than have the acts of any 
private citizens. 

In case the authorities empowered to make a treaty 
treacherously sacrifice the interests of the nation, such a 
treaty can scarcely be regarded as the act of the nation, 
and in justice should not stand. There are, however, grave 
difficulties in the way of invalidating treaties that have 
been framed with strict observance of all the prescribed 
forms, even though it may be claimed that the makers of 
the treaty have acted without patriotism and been careless 
of the interests of the nation they professed to represent. 
If the signature of one party to a treaty is obtained by force 
or by the false representations of the other party, the treaty 
is not binding. If a treaty sacrifices the interests of the 
nation, its validity is not impaired if this result is due to 
lack of information or the stupidity of the nation's repre- 
sentative, and not to false statements made by the oppo- 
site party with the intention to deceive. The makers of a 
treaty cannot bind this nation to do an act prohibited by 
the Constitution. 

Treaties are of various kinds. Commercial treaties de- 
fine private relations. They fix certain terms under which 
private persons residing in different countries may trade 
with one another. Political treaties deal with sovereign 
states in their relation to other sovereign states. As re- 
gards their duration, some treaties are temporary and others 
are of unlimited duration. Among the various forms of 
treaties, treaties of alliance are conspicuous; and alliances 



INTERNATIONAL RELATIONS 369 

may be formed for a variety of purposes. Two nations may 
form an alliance for the purpose of carrying on a war against 
a common enemy. This is an offensive alliance. They may 
form an alliance for the purpose of defending themselves 
against foreign encroachments. An alliance of this kind is 
called an alliance for defense, or a defensive alliance. 

Topics. — The making of treaties by the United States.— 
Powers of President and Senate as to treaties. — What treaties 
not binding. — Relation of Constitution to treaties. — Kinds of 
treaties. 

212. The Settlement of International Disputes. — Since 
sovereign nations have no common superior to whom they 
can appeal for a settlement of their differences, they have 
adopted various means to secure a recognition of what they 
consider to be their rights. In the first place, they enter 
into correspondence with one another through their properly 
accredited agents, hoping that a reasonable presentation 
and comparison of their claims will enable them to unite on 
some common ground, and formulate and approve terms of 
agreement. In the second place, finding themselves unable 
to reach such an agreement, they conclude to refer the case 
to a third person who is authorized by them to consider the 
merits of both sides of the contention and pronounce a 
decision, the opposing parties having agreed to accept and 
abide by this decision. In the third place, not being able 
to reach an agreement by either of these means, they resort 
to force. The first means employed is diplomacy; the 
second is arbitration; the third is war. 

Topics. — International controversies. — Methods of settlement: 
Diplomatic correspondence; arbitration; war. 

213. Neutral Nations in Times of War. — Although 
nations may resort to war as a method of settling their 
disputes, no war is likely to involve all the nations of the 



370 THE GOVERNMENT OF THE UNITED STATES 

world at the same time. Under any probable circumstances, 
therefore, there will remain at all times many nations at 
peace with one another and with the states that are carry- 
ing on the war. These are the neutral nations. They are 
expected to maintain peaceful relations with both of the 
belligerents, as the nations at Avar are called, and to hold an 
impartial attitude toward them. They are expected, more- 
over, to abstain from assisting either party in the conflict, 
and to 'maintain the friendly relations that existed before 
the war began. A neutral state may not furnish either 
belligerent with articles of food or munitions of war or with 
anything that will in any manner aid him in his military 
operations. It may not permit its ports or territorial waters 
to be used as a base for military or naval undertakings; nor 
may it permit deposits of supplies within the limits of its 
territory. Furthermore, when a ship from a belligerent fleet 
takes refuge in a neutral port it is expected that it will leave 
within twenty-four hours or remain dismantled till the end 
of the war. The vessels of a neutral state may traverse the 
high seas undisturbed, except when carrying contraband of 
war — that is to say, except when carrying articles destined to 
the military use or assistance of a belligerent. 

Fortunately, at present, the enlightened nations insist on 
the rigid observance of the rules of neutrality; and on 
the remarkable unanimity of opinion shown throughout the 
civilized world in 1905, that the war between Japan and 
Russia had continued long enough and should close, we may 
found the hope that the neutral nations will suffer war to 
last only to the attainment of essential justice, and that 
their combined moral influence in the future will be exerted 
to the maintenance of peace. 

Topics. — Definition of neutral nation. — Duties of neutral na- 
tions. — Neutral ports and neutral vessels. — Moral force of neutrals- 



APPENDIX 



AN ORDINANCE FOR THE GOVERNMENT OF THE 

TERRITORY OF THE UNITED STATES, 

NORTHWEST OF THE RIVER OHIO. 

July 13, 1787. 

Be it ordained, by the United States, in Congress assembled, that 
the said Territory, for the purposes of temporary government, be 
one district; subject, however, to be divided into two districts, 
as future circumstances may, in the opinion of Congress, make it 
expedient. 

Be it ordained, by the authority aforesaid, that the estates, both 
of resident and non-resident proprietors in the said Territory, dying 
intestate, shall descend to, and be distributed among, their children, 
and the descendants of a deceased child, in equal parts; the descend- 
ants of a deceased child or grandchild, to take the share of their 
deceased parent, in equal parts, among them; and where there shall 
be no children or descendants, then in equal parts to the next of kin, 
in equal degree; and among collaterals, the children of a deceased 
brother or sister of the intestate, shall have, in equal parts, among 
them, their deceased parent's share; and there shall in no case be a 
distinction between kindred of the whole and half blood; saving in 
all cases to the widow of the intestate, her third part of the real 
estate for life, and one-third part of the personal estate; and this law 
relative to descents and dower, shall remain in full force until altered 
by the legislature of the district. And until the governor and judges 
shall adopt laws as hereinafter mentioned, estates in the said Terri- 
tory may be devised or bequeathed by wills in writing, signed and 
sealed by him or her, in whom the estate may be (being of full age) , 
and attested by three Avitnesses, and real estates may be conveyed by 
lease and release, or bargain and sale, signed, sealed, and delivered 
by the person, being of full age, in whom the estate may be, and 
attested by two witnesses, provided such wills be duly proved, and 
such conveyances be acknowledged, or the execution thsreof duly 

371 



A single 
district, or 
two. 



Descent of 
property. 



Widow to 
receive the 
third part. 



May be 
bequeathed 
by will. 



372 



APPENDIX 



Governor's 
term, three 
years. 
Must own 
1,000 acres 
in the dis- 
trict. 



Governor 
and secre- 
tary ap- 
pointed by 
Congress. 



Three 
judges, 
each must 
own 500 
acres. 



Governor 
and judges 
may adopt 
laws from 
older 
States. 



Governor, 
command- 
er in chief 
of militia. 



proved, and be recorded within one year after proper magistrates, 
courts, and registers shall be appointed for that purpose; and per- 
sonal property may be transferred by delivery, saving, however, 
to the French and Canadian inhabitants, and other settlers of the 
Kaskaskias, Saint Vincents, and the neighboring villages, who have 
heretofore professed themselves citizens of Virginia, their laws and 
customs now in force among them, relative to descent and convey- 
ance of property. 

Be it ordained, by the authority aforesaid, that there shall be ap- 
pointed from time to time, by Congress, a governor, whose com- 
mission shall continue in force for the term of three years, unless 
sooner revoked by Congress; he shall reside in the district, and have a 
freehold estate therein, in one thousand acres of land, while in the 
exercise of his office. There shall be appointed from time to time, 
by Congress, a secretary, whose commission shall continue in force 
for four years, unless sooner revoked; he shall reside in the district, 
and have a freehold estate therein, in five hundred acres of land, 
while in the exercise of his office; it shall be his duty to keep and pre- 
serve the acts and laws passed by the legislature, and the public 
records of the district, and the proceedings of the governor in his 
executive department; and transmit authentic copies of such acts 
and proceedings, every six months, to the secretary of Congress. 
There shall also be appointed a court, to consist of three judges, any 
two of whom to form a court, who shall have a common-law juris- 
diction, and reside in the district, and have each therein a freehold 
estate, in five hundred acres of land, while in the exercise of their 
offices; and their commissions shall continue in force during good 
behavior. 

The governor and judges, or a majority of them, shall adopt and 
publish in the district, such laws of the original States, criminal and 
civil, as may be necessary, and best suited to the circumstances of 
the district, and report them to Congress, from time to time, which 
laws shall be in force in the district until the organization of the 
general assembly therein, unless disapproved of by Congress; but 
afterward, the legislature shall have authority to alter them as they 
shall think fit. 

The governor, for the time being, shall be commander in chief of 
the militia, appoint and commission all officers in the same, below 
the rank of general officers. All general officers shall be appointed 
and commissioned by Congress. 

Previous to the organization of the general assembly, the governor 
shall appoint such magistrates and other civil officers, in each county 



APPENDIX 



373 



or township, as he shall find necessary for the preservation of the 
peace and good order in the same. After the general assembly shall 
be organized, the powers and duties of magistrates and other civil 
officers shall be regulated and defined by the said assembly; but all 
magistrates and other civil officers, not herein otherwise directed, 
shall, during the continuance of this temporary government, be 
appointed by the governor. 

For the prevention of crimes and injuries, the laws to be adopted 
or made shall have force in all parts of the district, and for the exe- 
cution of process, criminal and civil, the governor shall make proper 
divisions thereof; and he shall proceed from time to time, as circum- 
stances may require, to lay out the parts of the district in which the 
Indian titles shall have been extinguished, into counties and town- 
ships, subject, however, to such alterations as may thereafter be made 
by the legislature. 

So soon as there shall be five thousand free male inhabitants, of 
full age, in the district, upon giving proof thereof to the governor, 
they shall receive authority, with time and place, to elect representa- 
tives from their counties or townships, to represent them in the 
general assembly: provided, that for every five hundred free male 
inhabitants there shall be one representative, and so on progressively 
with the number of free male inhabitants, shall the right of representa- 
tion increase, until the number of representatives shall amount to 
twenty-five, after which the number and proportion of representa- 
tives shall be regulated by the legislature; provided, that no person 
be eligible or qualified to act as a representative, unless he shall have 
been a citizen of one of the United States three years, and be a resi- 
dent in the district, or unless he shall have resided in the district 
three years, and in either case shall likewise hold in his own right, in 
fee simple, two hundred acres of land within the same; provided, also, 
that a freehold in fifty acres of land in the district, having been a 
citizen of one of the States, and being resident in the district, or the 
like freehold and two years' residence in the district, shall be neces- 
sary to qualify a man as an elector of a representative. 

The representatives thus elected, shall serve for the term of two 
years, and in case of the death of a representative, or removal from 
office, the governor shall issue a writ to the county or township for 
which he was a member, to elect another in his stead, to serve for 
the residue of the term. 

The general assembly, or legislature, shall consist of the governor, 
legislative council, and a house of representatives. The legislative 
council shall consist of five members, to continue in office for five 



Counties 
and town- 
ships to be 
laid ou 



General 
assembly, 
when 5,0C0 
inhabitants. 



Qualifica- 
tions of 
representa- 
tives. 



Term, two 

years, 

in general 

assembly. 



374 



APPENDIX 



Legislative 
council, 
representa- 
tives, and 
governor. 



Mode of 
appointing 
legislative 
council. 

Law- 
making. 



Oaths of 
office. 



Delegate 
in Con- 
gress. 

Fundamen- 
tal prin- 
ciples. 



years, unless sooner removed by Congress, any three of whom to be a 
quorum, and the members of the council shall be nominated and 
appointed in the following manner: to wit, as soon as representa- 
tives shall be elected, the governor shall appoint a time and place for 
them to meet together, and when met, they shall nominate ten 
persons, residents in the district, and each possessed of a freehold in 
five hundred acres of land, and return their names to Congress; five 
of whom Congress shall appoint and commission to serve as aforesaid; 
and whenever a vacancy shall happen in the council, by death or 
removal from office, the house of representatives shall nominate two 
persons, qualified as aforesaid, for each vacancy, and return their 
names to Congress, one of whom Congress shall appoint and com- 
mission for the residue of the term; and every five years, four months 
at least before the expiration of the time of service of the members of 
council, the said house shall nominate ten persons, qualified as afore- 
said, and return their names to Congress, five of whom Congress 
shall appoint and commission to serve as members of the council 
five years, unless sooner removed. 

And the governor, legislative council, and house of representa- 
tives shall have authority to make laws in all cases for the good 
government of the district, not repugnant to the principles and articles 
in this ordinance established and declared. And all bills having 
passed by a majority in the house, and by a majority in the council, 
shall be referred to the governor for his assent; but no bill or legis- 
lative act whatever shall be of any force without his assent. The 
governor shall have power to convene, prorogue, and dissolve the 
general assembly, when in his opinion it shall be expedient. 

The governor, judges, legislative council, secretary, and sucb 
other officers as Congress shall appoint in the district, shall take an 
oath or affirmation of fidelity, and of office — the governor before the 
president of Congress, and all other officers before the governor. As 
soon as a legislature shall be formed in the district, the council and 
house, assembled in one room, shall have authority, by joint ballot, 
to elect a delegate to Congress, who shall have a seat in Congress 
with a right of debating, but not of voting, during this temporary 
government. 

And for extending the fundamental principles of civil and relig- 
ious liberty, which form the basis whereon these republics, their 
laws and constitutions, are erected; to fix and establish those prin- 
ciples as the basis of all laws, constitutions, and governments, which 
forever hereafter shall be formed in the said Territory; to provide 
also for the establishment of States; and permanent government 



APPENDIX 



375 



Kill of 
RightSo 



therein, and for their admission to a share in the federal councils 
on an equal footing with the original States, at as early periods as 
may be consistent with the general interest. 

It is hereby ordained and declared, by the authority aforesaid, 
that the following articles shall be considered as articles of compact 
between the original States and the people and States in the said 
Territory, and forever remain unalterable, unless by common con- 
sent, to wit: 

Article I. — No person demeaning himself in a peaceable and 
orderly manner, shall ever be molested on account of his mode of 
worship or religious sentiments in the said Territory. 

Art. II. — The inhabitants of the said Territory shall always be 
entitled to the benefit of the writ of habeas corpus, and of trial by 
jury; of a proportionate representation of the people in the legisla- 
ture, and of judicial proceedings according to the course of the com- 
mon law; all persons shall be bailable unless for capital offenses, 
where the proof shall be evident or the presumption great; all fines 
shall be moderate, and no cruel or unusual punishment shall be 
inflicted; no man shall be deprived of his liberty or property but by 
the judgment of his peers, or the law of the land; and should the 
public exigencies make it necessarjr for the common preservation to 
take any person's property, or to demand his particular services, full V 
compensation shall be made for the same; and in the just preser- 
vation of rights and property, it is understood and declared, that 
no law ought ever to be made, or have force in the said Territory, 
that shall in any manner whatever, interfere with, or affect private 
contracts or engagements, bona fide and without fraud previously 
formed. 

Art. III. — Religion, morality, and knowledge, being necessary to Religion. 
good government and the happiness of mankind, schools, and the 
means of education shall forever be encouraged. The utmost good 
faith shall always be observed toward the Indians; their lands 
and property shall never be taken from them without their consent; 
and in their property, rights, and liberty, they shall never be in- 
vaded or disturbed, unless in just and lawful wars authorized by 
Congress; but laws founded in justice and humanity, shall, from 
time to time, be made, for preventing wrongs being done to them, 
and for preserving peace and friendship with them. 

Art. IV. — The said Territory, and the States which may be 
formed therein, shall forever remain a part of this confederacy of 
the United States of America, subject to the Articles of Confeder- 
ation, and to such alteration therein, as shall be constitutionally 



Treatment 
of Indians. 



Perpetually 
part of the 
Union. 



376 



APPENDIX 



Taxation. 



Not less 
than three 
nor more 
than five 
States may 
be formed. 
Boundaries. 



made; and to all the acts and ordinances of the United States, in 
Congress assembled, conformable thereto. The inhabitants and 
settlers in the said Territory shall be subject to pay a part of the 
federal debts contracted or to be contracted, and a proportional 
part of the expenses of government, to be apportioned on them, by 
Congress, according to the same common rule and measure by 
which apportionments thereof shall be made on the other States; 
and the taxes for paying their proportion, shall be laid and levied 
by the authority and direction of the legislatures of the district, or 
districts, or new States, as in the original States, within the time 
agreed upon by the United States, in Congress assembled. The legis- 
latures of those districts, or new States, shall never interfere with 
the primary disposal of the soil by the United States, in Congress 
assembled, nor with any regulations Congress may find necessary 
for securing the title in such soil to the bona fide purchasers. No tax 
shall be imposed on lands the property of the United States; and 
in no case shall non-resident proprietors be taxed higher than resi- 
dents. The navigable waters leading into the Mississippi and St. 
Lawrence, and the carrying places between the same, shall be 
common highways, and forever free, as well to the inhabitants of 
the said Territory, as to the citizens of the United States, and those 
of any other States that may be admitted into the confederacy, 
without any tax, impost, or duty therefor. 

Art. V. — There shall be formed in the said Territory not less 
than three, nor more than five States; and the boundaries of the 
States, as soon as Virginia shall alter her act of cession and consent 
to the same, shall become fixed and established as follows, to wit: 
The western State in the said Territory shall be bounded by the Mis- 
sissippi, the Ohio, and the Wabash rivers; a direct line drawn from 
the Wabash and Post St. Vincent's clue north to the territorial line 
between the United States and Canada, and by the said territorial 
line to the Lake of the Woods and Mississippi. The middle State 
shall be bounded by the said direct line, the Wabash from Post St. 
Vincent's to the Ohio, by the Ohio, by a direct line drawn due north 
from the mouth of the Great Miami to the said territorial line, and 
by said territorial line. The eastern State shall be bounded by the 
last-mentioned direct line, the Ohio, Pennsylvania, and the said terri- 
torial line: provided, however, and it is further understood and 
declared, that the boundaries of these three States shall be subject 
so far to be altered, that if Congress shall hereafter find it expedient 
they shall have authority to form one or two States in that part of 
the said Territory which lies north of an east and west line drawn 



APPENDIX 



377 



through the southerly bend or extreme of Lake Michigan. And 
whenever any of the said States shall have sixty thousand free 
inhabitants therein, such State shall be admitted by its delegates, 
into the Congress of the United States, on an equal footing with the 
original States, in all respects whatsoever; and shall be at liberty 
to form a permanent constitution and State government: provided, 
the constitution and government so to be formed shall be republican, 
and in conformity to the principles contained in these articles; and, 
so far as it can be consistent with the general interest of the con- 
federacy, such admission shall be allowed at an earlier period, and 
when there may be a less number of free inhabitants in the State 
than sixty thousand. 

Art. VI. — There shall be neither slavery nor involuntary servitude Slavery not 
in the said Territory, otherwise than in the punishment of crimes permitted. 
whereof the party shall have been duly convicted : 'provided, always, 
that any person escaping into the same, from whom labor or service Fugitive 

is lawfully claimed in any one of the original States, such fugitive slaves ma y 

. . be returned^ 
may be lawfully reclaimed and conveyed to the person claiming 

his or her labor or service as aforesaid. 

Be it ordained, by the authority aforesaid, that the resolutions 

of the 23d of April, 1784, relative to the subject of this ordinance, 

be, and the same are hereby repealed and declared null and void. 



II 



ARTICLES OF CONFEDERATION 



Articles of Confederation and Perpetual Union Between 1 
the States of New Hampshire, Massachusetts Bay, 
Rhode Island and Providence Plantations, Connecticut, 
New York, New Jersey, Pennsylvania, Delaware, Mary- 
land, Virginia, North Carolina, South Carolina, and 
Georgia. 

Article I. — The style of this Confederacy shall be "The United Name. 
States of America." 

Art. II.— Each State retains its sovereignty, freedom, and inde- Each State 

pendence, and every power, jurisdiction, and right, which is not to hold a11 

by this Confederation expressly delegated to the United States, in express i y 

Congress assembled. delegated. 
25 



378 



APPENDIX 



League of 
friendship 
for general 
welfare. 



Free inter- 
state mi- 
gration and 
commerce. 



Fleeing 
criminals 
to be given 
up by 
States. 



Full faith 
and credit 
to records. 

Delegates 
to Con- 
gress. 



Art. III. — The said States hereby severally enter into a firm 
league of friendship with each other for their common defense, 
the security of their liberties, and their mutual and general wel- 
fare, binding themselves to assist each other against all force offered 
to, or attacks made upon them, or any of them, on account of 
religion, sovereignty, trade, or any other pretense whatever. 

Art. IV. — The better to secure and perpetuate mutual friend- 
ship and intercourse among the people of the different States of 
this Union, the free inhabitants of each of these States, paupers, 
vagabonds, and fugitives from justice excepted, shall be entitled 
to all privileges and immunities of free citizens in the several States; 
and the people of each State shall have free ingress and regress to 
and from any other State, and shall enjoy therein all the privileges 
of trade and commerce, subject to the same duties, impositions, 
and restrictions as the inhabitants thereof respectively: provided, 
that such restrictions shall not extend so far as to prevent the 
removal of property imported into any State, to any other State 
of which the owner is an inhabitant: provided also, that no imposi- 
tion, duties, or restriction shall be laid by any State on the property 
of the United States, or either of them. 

If any person guilty of or charged with treason, felony, or 
other high misdemeanor in any State, shall flee from justice, and be 
found in any of the United States, he shall, upon demand of the 
governor or executive power of the State from which he fled, be 
delivered up and removed to the State having jurisdiction of his 
offense. 

Full faith and credit shall be given in each of these States to 
the records, acts, and judicial proceedings of the courts and magis- 
trates of every other State. 

Art. V. — For the more convenient management of the general 
interests of the United States, delegates shall be annually appointed, 
in such manner as the Legislature of each State shall direct, to meet 
in Congress, on the first Monday in November in every year, with a 
power reserved to each State to recall its delegates, or any of them, 
at any time within the year, and to send others in their stead for 
the remainder of the year. 

No State shall be represented in Congress by less than two, nor 
by more than seven members; and no person shall be capable of 
being a delegate for more than three years in any term of six years; 
nor shall any person, being a delegate, be capable of holding any 
office under the United States, for which he, or another for his 
benefit, receives any salary, fees, or emolument of any kind. 



APPENDIX 



379 



Each State shall maintain its own delegates in a meeting of 
the States, and while they act as members of the committee of the 
States. 

In determining questions in the United States, in Congress 
assembled, each State shall have one vote. 

Freedom of speech and debate in Congress shall not be im- 
peached or questioned in any court, or place out of Congress; and 
the members of Congress shall be protected in their persons from 
arrests and imprisonments during the time of their going to and 
from, and attendance on Congress, except for treason, felony, or 
breach of the peace. 

Art. VI. — No State, without the consent of the United States, 
in Congress assembled, shall send any embassy to, or receive any 
embassy from, or enter into any conference, agreement, alliance, 
or treaty with any king, prince, or state; nor shall any person hold- 
ing any office of profit or trust under the United States, or any 
of them, accept of any present, emolument, office, or title of any 
kind whatever from any king, prince, or foreign state; nor shall 
the United States in Congress assembled, or any of them, grant 
any title of nobility. 

No two or more States shall enter into any treaty, confederation, 
or alliance whatever between them, without the consent of the 
United States, m Congress assembled, specifying accurately the 
purposes for wr>*<;h the same is to be entered into, and how long it 
shall continue. 

No State shall lay any imposts or duties, which may interfere 
with any stipulations in treaties entered into by the United States 
in Congress assembled, with any king, prince, or state, in pur- 
suance of any treaties already proposed by Congress to the courts 
of France and Spain. 

No vessels of war shall be kept up in time of peace by any State, 
except such number only as shall be deemed necessary by the 
United States, in Congress assembled, for the defense of such State, 
or its trade; nor shall any body of forces be kept up by any State, 
in time of peace, except such number only, as in the judgment of 
the United States, m Congress assembled, shall be deemed requisite 
to garrison the forts necessary for the defense of such State; but 
every State shall always keep up a well-regulated and disciplined 
militia, sufficiently armed and accoutered, and shall provide and 
have constantly ready for use, in public stores, a due number of 
field pieces and tents, and a proper quantity of arms, ammunition, 
and camp equipage. 



Each State 
to maintain 
its dele- 
gates. 
Each State 
one vote. 

Freedom of 
speech. 



No embassj 
without 
consent of 
Congress. 



v \o 

alliances 
among 
States with- 
out consent 
of Congress. 
No imposts 
or duties. 



No military 
or naval 
force in 
peace, ex- 
cept ade- 
quate gar- 
risons. 



380 



APPENDIX 



No State to 
engage in 
war. 



No State shall engage in any war without the consent of the 
United States, in Congress assembled, unless such State be actually- 
invaded by enemies, or shall have received certain advice of a reso- 
lution being formed by some nation of Indians to invade such State, 
and the danger is so imminent as not to admit of a delay till the 
United States, in Congress assembled, can be consulted. Nor shall 
any State grant commissions to any ships or vessels, of war, nor 
letters of marque or reprisal, except it be after a declaration of war 
by the United States, in Congress assembled, and then only against 
the kingdom or state, and the subjects thereof, against which war 
has been so declared; and under such regulations as shall be estab- 
lished by the United States, in Congress assembled; unless such 
State be infested by pirates, in which case vessels of war may be 
fitted out for that occasion, and kept so long as the danger shall 
continue, or until the United States, in Congress assembled, shall 
determine otherwise. 

Art. VII. — When land forces are raised by any State for the 
common defense, all officers of or under the rank of colonel shall 
be appointed by the Legislature of each State, respectively, by 
whom such forces shall be raised, or in such manner as such State 
shall direct, and all vacancies shall be filled up by the State which 
first made the appointment. 

Art. VIII. — All charges of war, and all other expenses that 
shall be incurred for the common defense or general welfare, ..and 
allowed by the United States, in Congress assembled, shall be de- 
frayed out of the common treasury, which shall be supplied by the 
several States, in proportion to the value of all land within each 
State, granted to or surveyed for any person, as such land and 
the buildings and improvements thereon shall be estimated accord- 
ing to such mode as the United States, in Congress assembled, shall, 
from time to time, direct and appoint. The taxes for paying that 
proportion shall be laid and levied by the authority and direction 
of the Legislatures of the several States, within the time agreed 
upon by the United States, in Congress assembled. 

Art. IX. — The United States, in Congress assembled, shall 
have the sole and exclusive right and power .of determining on 
peace and war, except in the cases mentioned in the sixth article; 
of sending and receiving ambassadors; entering into treaties and 
alliances: provided, that nc treaty of commerce shall be made 
whereby the legislative power of the respective States shall be 
restrained from imposing such imposts and duties on foreigners, 
as their own people are subjected to, or from prohibiting the expor- 



AFPENDIX 



381 



States ap- 
pealed to 
Congress. 



tation or importation of any species of goods or commodities what- 
soever; of establishing rules for deciding, in all cases, what captures 
on land or water shall be legal, and in what manner prizes taken 
by land or naval forces in the service of the United States shall be 
divided or appropriated; of granting letters of marque and reprisal 
in times of peace; appointing courts for the trial of piracies and 
felonies committed on the high seas, and establishing courts for 
receiving and determining finally appeals in all cases of captures: 
provided, that no member of Congress shall be appointed a judge 
of any of the said courts. 

The United States, in Congress assembled, shall also be the last Differences 
resort on appeal in all disputes and differences now subsisting, or between 
that hereafter may arise, between two or more States concerning 
boundary, jurisdiction, or any other cause whatever; which authority 
shall always be exercised in the manner following: Whenever 
the legislative or executive authority, or lawful agent of any State 
in controversy with another, shall present a petition to Congress, 
stating the matter in question, and praying for a hearing, notice 
thereof shall be given, by order of Congress, to the legislative or 
executive authority of the other State in controversy, and a day 
assigned for the appearance of the parties by their lawful agents* 
who shall then be directed to appoint, by joint consent, commis- 
sioners or judges to constitute a court for hearing and determining 
the matter in question; but if they cannot agree, Congress shall Procedure. 
name three persons out of each of the United States, and from the 
list of such persons each party shall alternately strike out one, the 
petitioners beginning, until the number shall be reduced to thirteen; 
and from that number not less than seven, nor more than nine 
names, as Congress shall direct, shall, in the presence of Congress, 
be drawn out by lot, and the persons whose names shall be so drawn, 
or any five of them, shall be commissioners or judges to hear and 
finally determine the controversy, so always as a major part of the 
judges who shall hear the cause shall agree in the determination; 
and if either party shall neglect to attend at the day appointed, 
without showing reasons, which Congress shall judge sufficient, or 
being present shall -refuse to strike, the Congress shall proceed to 
nominate three persons out of each State, and the Secretary of 
Congress shall strike in behalf of such party absent or refusing; 
and the judgment and sentence of the court to be appointed, in the 
manner before prescribed, shall be final and conclusive; and if any 
of the parties shall refuse to submit to the authority of such court, 
or to appear or defend their claim or cause, the court shall, neverthe- 



382 



APPENDIX 



Congress 
hears land- 
grant dis- 
putes. 



Coinage; 
weights and 
measures; 
trade with 
Indians. 



Tost offices. 



Appoint- 
ment of 
military 
and naval 
officers. 



Committee 
of the 
States. 



less, proceed to pronounce sentence or judgment, which shall in like 
manner be final and decisive, the judgment or sentence and other 
proceedings being in either case transmitted to Congress, and lodged 
among the acts of Congress for the security of the parties concerned : 
provided, that every commissioner, before he sits in judgment, shall 
take an oath, to be administered by one of the Judges of the Supreme 
or Superior Court of the State where the cause shall be tried, "well 
and truly to hear and determine the matter in question, according 
to the best of his judgment, without favor, affection, or hope of 
reward": provided, also, that no State shall be deprived of terri- 
tory for the benefit of the United States. 

All controversies concerning the private right of soil claimed 
under different grants of two or more States, whose jurisdictions 
as they may respect such lands, and the States which passed such 
grants, are adjusted, the said grants, or either of them, being at the 
same time claimed to have originated antecedent to such settle- 
ment of jurisdiction, shall, on the petition of either party to the 
Congress of the United States, be finally determined as near as 
may be in the same manner as is before described for deciding dis- 
putes respecting territorial jurisdiction between different States. 

The United States, in Congress assembled, shall also have the sole 
and exclusive right and power of regulating the alloy and value 
of coin struck by their own authority, or by that of the respective 
States; fixing the standard of weights and measures throughout 
the United States; regulating the trade, and managing all affairs 
with the Indians, not members of any of the States: provided, that 
the legislative right of any State, within its own limits, be not 
infringed or violated; establishing and regulating post offices from 
one State to another, throughout all the United States, and exact- 
ing such postage on the papers passing through the same as may 
be requisite to defray the expenses of the said office; appointing 
all officers of the land forces in the service of the United States, 
excepting regimental officers; appointing all the officers of the 
naval forces, and commissioning all officers whatever in the service 
of the United States; making rules for the government and regula- 
tion of the said land and naval forces, and directing their operations. 

The United States, in Congress assembled, shall have authority 
to appoint a committee, to sit in the recess of Congress, to be de- 
nominated a "Committee of the States," and to consist of one 
delegate from each State; and to appoint such other committees 
and civil officers as may be necessary for managing the general 
affairs of the United States under their direction; to appoint one 



APPENDIX 



383 



of their number to preside: provided, that no person be allowed to 
serve in the office of President more than one year in any term of President 
three years; to ascertain the necessary sums of money to be raised of Con- 
for the service of the United States, and to appropriate and apply gress 
the same for defraying the public expenses; to borrow money or 
emit bills on the credit of the United States, transmitting every Borrowing 
half year to the respective States an account of the sums of money money. 
so borrowed or emitted; to build and equip a navy; to agree upon 
the number of land forces, and to make requisitions from each Navy and 
State for its quota, in proportion to the number of white inhabit- land ' orces « 
ants in such State, which requisition shall be binding, and there- 
upon the Legislature of each State shall appoint the regimental 
officers, raise the men, and clothe, arm, and equip them in a soldier- 
like manner, at the expense of the United States; and the officers 
and men so clothed, armed, and equipped shall march to the place 
appointed, and within the time agreed on by the United States, in 
Congress assembled. But if the United States, in Congress as- 
sembled, shall, on consideration of circumstances, judge proper 
that any State should not raise men, or should raise a smaller number 
than its quota, and that any other State should raise a greater 
number of men than the quota thereof, such extra number shall be 
raised, officered, clothed, armed, and equipped in the same manner 
as the quota of such State, unless the Legislature of such State shall 
judge that such extra number cannot be safely spared out of the 
same, in which case they shall raise, officer, clothe, arm, and equip 
as many of such extra number as they judge can be safely spared. 
And the officers and men so clothed, armed, and equipped shall 
march to the place appointed, and within the time agreed on by the 
United States, in Congress assembled. 

The United States, in Congress assembled, shall never engage 
in a war, nor grant letters of marque and reprisal in time of peace, 
nor enter into any treaties or alliances, nor coin money, nor regulate 
the value thereof, nor ascertain the sums and expenses necessary 
for the defense and welfare of the United States, or any of them, 
nor emit bills, nor borrow money on the credit of the United States, 
nor appropriate money, nor agree upon the number of vessels of war 
to be built or purchased, or the number of land or sea forces to be 
raised, nor appoint a commander in chief of the army or navy, 
unless nine States assent to the same; nor shall a question on any Assent of 
other point, except for adjourning from day to day, be determined, nine States 
unless by the votes of a majority of the United States, in Congress i mpor tant 
assembled. measures. 



384 



APPENDIX 



Adjourn- 
ment. 



Journal. 



Powers of 
Committee 
of the 

States. 



Canada 
might join. 



Public 
credit. 



States to 
abide by 
determina- 
tions by 
Congress. 



The Congress of the United States shall have powei to adjourn 
to any time within the year, and to any place within the United 
States, so that no period of adjournment be for a longer duration 
than the space of six months; and shall publish the Journal of their 
proceedings monthly, except such parts thereof relating to treaties, 
alliances, or military operations, as in their judgment require 
secrecy ; and the yeas and nays of the delegates of each State on any 
question shall be entered on the Journal, when it is desired by any 
delegate ; and the delegates of a State, or any of them, at his or their 
request, shall be furnished with a transcript of the said Journal, 
except such parts as are above excepted, to lay before the legis- 
latures of the several States. 

Art. X. — The Committee of the States, or any nine of them, 
shall be authorized to execute, in the recess of Congress, such of 
the powers of Congress as the United States, in Congress assembled, 
by the consent of nine States, shall, from time to time, think expe- 
dient to vest them with : provided, that no power be delegated to the 
said committee, for the exercise of which, by the Articles of Con- 
federation, the voice of nine States in the Congress of the United 
States assembled is requisite. 

Art. XL — Canada acceding to this Confederation, and joining 
in the measures of the United States, shall be admitted into, and 
entitled to all the advantages of this Union; but no other colony 
shall be admitted into the same, unless such admission be agreed 
to by nine States. 

Art. XII. — All bills of credit emitted, moneys borrowed and 
debts contracted, by or under the authority of Congress, before the 
assembling of the United States, in pursuance of the present Con- 
federation, shall be deemed and considered as a charge against the 
United States, for payment and satisfaction whereof the said United 
States and the public faith are hereby solemnly pledged. 

Art. XIII. — Every State shall abide by the determinations of 
the United States, in Congress assembled, on all questions which 
by this Confederation are submitted to them. And the Articles of 
this Confederation shall be inviolably observed by every State, 
and the Union shall be perpetual; nor shall any alteration at any 
time hereafter be made in any of them, unless such alteration be 
agreed to in a Congress of the United States, and be afterward 
confirmed by the Legislatures of every State. 

And Whereas, It hath pleased the Great Governor of the world 
to incline the hearts of the Legislatures we respectively represent 
in Congress, to approve of, and to authorize us to ratify the said 



APPENDIX 



385 



Articles of Confederation and perpetual Union. Know ye that we, 
the undersigned delegates, by virtue of the power and authority 
to us given for that purpose, do by these presents, in the name 
and in behalf of our respective constituents, fully and entirely 
ratify and confirm each and every of the said Articles of Con- 
federation and perpetual Union, and all and singular the matters 
and things therein contained. 

And we do further solemnly plight and engage the faith of our 
respective constituents, that they shall abide by the determina- 
tions of the United States, in Congress assembled, on all questions 
which by the said Confederation are submitted to them; and that 
the articles thereof shall be inviolably observed by the States we 
respectively represent, and that the Union shall be perpetual. 

In witness whereof, we have hereunto set our hands in Con- 
gress. Done at Philadelphia, in the State of Pennsylvania, the 
9th day of July, in the year of our Lord, 1778, and in the 3d year 
of the Independence of America. 



Ill 

CONSTITUTION OF THE UNITED STATES 
OF AMERICA 

We, the people of the United States, in order to form a more 
perfect union, establish justice, insure domestic tranquillity, pro- 
vide for the common defense, promote the general welfare, and 
secure the blessings of liberty to ourselves and our posterity, do 
ordain and establish this Constitution for the United States of 
America. 

ARTICLE I. 

Section 1. — All legislative powers herein granted shall be vested 
in a Congress of the United States, which shall consist of a Senate 
and House of Representatives. 

Sec. 2. — 1. The House of Representatives shall be composed of 
members chosen every second year by the people of the several States, 
and the electors in each State shall have the qualifications requisite 
for electors of the most numerous branch of the State Legislature. 

2. No person shall be a Representative who shall not have 
attained the age of twenty-five years and been seven years a citizen 
of the United States, and who shall not, when elected, be an inhabit- 
ant of that State in which he shall be chosen. 



Preamble. 



Legislative 
powers. 



House of 
Representa- 
tives. 



Eligibility 
of repre- 
sentatives. 



386 



APPENDIX 



31anner and 
ratio of 
representa- 
tion and 
taxation. 



Vacancies 
in represen- 
tation. 

Speaker 
and im- 
peachment. 

The Senate. 



Choice of 

one-third 

of senators 

every 

second 

year. 



Eligibility 
of senators. 



3. [Representatives and direct taxes shall be apportioned among 
the several States which may be included within this Union, accord- 
ing to their respective numbers, which shall be determined by adding 
to the whole number of free persons, including those bound to ser- 
vice for a term of years, and excluding Indians not taxed, three- 
fifths of all other persons. The actual enumeration shall be made 
within three years after the first meeting of the Congress of the 
United States, and within every subsequent term of ten years, in 
such manner as they shall by law direct. The number of Rep- 
resentatives shall not exceed one for every thirty thousand, but 
each State shall have at least one Representative; and until such 
enumeration shall be made, the State of New Hampshire shall be 
entitled to choose three, Massachusetts eight, Rhode Island and 
Providence Plantations one, Connecticut five, New York six, New 
Jersey four, Pennsylvania eight, Delaware one, Maryland six, Vir- 
ginia ten, North Carolina five, South Carolina five, and Georgia 
three.] 

This clause has been superseded, so far as it relates to representation, by Sec- 
tion 2 of the Fourteenth Amendment to the Constitution. 

4. When vacancies happen in the representation from any State, 
the executive authority thereof shall issue writs of election to fill 
such vacancies. 

5. The House of Representatives shall choose their Speaker 
and other officers, and shall have the sole power of impeach- 
ment. 

Sec. 3. — 2. The Senate of the United States shall be composed 
of two Senators from each State, chosen by the Legislature thereof, 
for six years, and each Senator shall have one vote. 

2. Immediately after they shall be assembled in consequence of 
the first election, they shall be divided as equally as may be into 
three classes. The seats of the Senators of the first class shall be 
vacated at the expiration of the second year, of the second class at 
the expiration of the fourth year, and of the third class at the expira- 
tion of the sixth year, so that one-third may be chosen every second 
year; and if vacancies happen, by resignation or otherwise, during 
the recess of the Legislature of any State, the Executive thereof may 
make temporary appointments until the next meeting of the Legis- 
lature, which shall then fill such vacancies. 

3. No person shall be a Senator who shall not have attained the 
age of thirty years, and been nine years a citizen of the United 
States, and who shall not, when elected, be an inhabitant of the 
State for which he shall be chosen. 



APPENDIX 



387 



4. The Vice-President of the United States shall be President of 
the Senate, but shall have no voice unless they shall be equally 
divided. 

5. The Senate shall choose their officers, and have a President 
pro tempore, in the absence of the Vice-President, or when he shall 
exercise the office of President of the United States. 

6. The Senate shall have the sole power to try all impeachments; 
when sitting for that purpose, they shall be on oath or affirmation. 
When the President of the United States is tried, the Chief Justice 
shall preside; and no person shall be convicted without the con- 
currence of two-thirds of the members present. 

7. Judgment in cases of impeachment shall not extend further 
than to removal from office and disqualification to hold and enjoy 
any office of honor, trust, or profit under the United States; but the 
party convicted shall, nevertheless, be liable and subject to indict- 
ment, trial, judgment, and punishment according to law. 

Sec. 4. — 1. The times, places, and manner of holding elections 
for Senators and Representatives shall be prescribed in each State 
by the Legislature thereof; but the Congress may at any time, by 
law, make or alter such regulations, except as to the places of 
choosing Senators. 

2. The Congress shall assemble at least once in every year, and 
such meeting shall be on the first Monday in December, unless they 
shall, by law, appoint a different day. 

Sec. 5. — 1. Each house shall be the judge of the elections, returns, 
and qualifications of its own members, and a majority of each shall 
constitute a quorum to do business; but a smaller number may 
adjourn from day to day, and may be authorized to compel the 
attendance of absent members, in such manner and under such 
penalties as each house may provide. 

2. Each house may determine the rules of its proceedings, punish 
its members for disorderly behavior, and, with the concurrence of 
two-thirds, expel a member. 

3. Each house shall keep a journal of its proceedings, and from 
time to time publish the same, excepting such parts as may, in 
their judgment, require secrecy; and the ayes and noes of the mem- 
bers of either house, on any question, shall, at the desire of one- 
fifth of those present, be entered on the journal. 

4. Neither house, during the session of Congress, shall, with- 
out the consent of the other, adjourn for more than three days, 
nor to any other place than that in which the two houses shall be 
sitting. 



President of 
the Senate. 



President 
pro tern. 

Senate's 
power to 
try im- 
peach- 
ments. 

Penalty in 
cases of 
impeach- 
ment. 



Congres- 
sional 
elections. 



31eeting of 
Congress. 

Organiza- 
tion of 
Congress. 



Rules of 
proceedings. 
Punish- 
ment of 
members. 

Journal of 
proceedings, 



Adjourn- 
ment. 



388 



APPENDIX 



Compensa- 
tion and 
privileges 
of congress- 
men. 



Congress- 
men not to 
hold civil 
office. 



Revenue 
bills. 



Bills, etc., 
to be pre- 
sented to 
the Presi- 
dent of the 
United 
States. 



Sec. 6. — 1. The Senators and Representatives shall receive a com- 
pensation for their services, to be ascertained by law, and paid out 
of the treasury of the United States. They shall, in all cases, 
except treason, felony, and breach of the peace, be privileged from 
arrest during their attendance at the session of their respective 
houses, and in going to and returning from the same; and for any 
speech or debate in either house, they shall not be questioned in 
any other place. 

2. No Senator or Representative shall, during the time for which 
he was elected, be appointed to any civil office under the authority 
of the United States, which shall have been created, or the emolu- 
ments whereof shall have been increased, during such time; and 
no person holding any office under the United States shall be a 
member of either house during his continuance in office. 

[See also Section 3 of the Fourteenth Amendment.] 

Sec. 7. — 1. All bills for raising revenue shall originate in the 
House of Representatives, but the Senate may propose or concur 
with amendments as on other bills. 

2. Every bill which shall have passed the House of Representa- 
tives and the Senate, shall, before it becomes a law, be presented 
to the President of the United States; if he approve, he shall sign 
it, but if not, he shall return it, with his objections, to that house 
in which it shall have originated, who shall enter the objections at 
large on their journal, and proceed to reconsider it. If, after such 
reconsideration, two-thirds of that house shall agree to pass the 
bill, it shall be sent, together with the objections, to the other house, 
by which it shall likewise be reconsidered, and if approved by 
two-thirds of that house it shall become a law. But in all such 
cases the votes of both houses shall be determined by ayes and 
noes; and the names of the persons voting for and against the bill 
shall be entered on the journal of each house, respectively. If any 
bill shall not be returned by the President within ten days (Sundays 
excepted) after it shall have been presented to him, the same shall 
be a law, in like manner as if he had signed it, unless the Congress, 
by their adjournment, prevent its return, in which case it shall not 
be a law. 

3. Every order, resolution, or vote, to which the concurrence of 
the Senate and the House of Representatives may be necessary 
(except on a question of adjournment), shall be presented to the 
President of the United States; and, before the same shall take 
effect, shall be approved by him, or, being disapproved by him. 
shall be repassed by two-thirds of the Senate and House of Repre- 



APPENDIX 



389 



sentatives, according to the rules and limitations prescribed in the 
case of a bill. 

Sec. 8. — 1. The Congress shall have power to lay and collect 
taxes, duties, imposts, and excises, to pay the debts and provide 
for the common defense and general welfare of the United States; 
but all duties, imposts, and excises shall be uniform throughout 
the United States. 

2. To borrow money on the credit of the United States. 

3. To regulate commerce with foreign nations, and among the 
several States, and with the Indian tribes. • 

4. To establish an uniform rule of naturalization, and uniform 
laws on the subject of bankruptcies throughout the United States. 

5. To coin money, regulate the value thereof and of foreign coins, 
and fix the standard of weights and measures. 

6. To provide for the punishment of counterfeiting the securities 
and current coin of the United States. 

7. To establish post offices and post roads. 

8. To promote the progress of science and useful arts by securing, 
for limited times, to authors and inventors, the exclusive right to 
their respective writings and discoveries. 

9. To constitute tribunals inferior to the Supreme Court. 

10. To define and punish piracies and felonies committed on the 
high seas, and offenses against the laws of nations. 

11. To declare war, grant letters of marque and reprisal, and 
make rules concerning captures on land and water. 

12. To raise and support armies; but no appropriation of money 
to that use shall be for a longer term than two years. 

13. To provide and maintain a navy. 

14. To make rules for* the government and regulation of the 
land and naval forces. 

15. To provide for calling forth the militia to execute the laws 
of the Union, suppress insurrections, and repel invasions. 

16. To provide for organizing, arming, and disciplining the 
militia, and for governing such part of them as may be employed 
in the service of the United States, reserving to the States, respec- 
tively, the appointment of the officers, and the authority of training 
the militia according to the discipline prescribed by Congress. 

17. To exercise exclusive legislation, in all cases whatsoever, over 
such district (not exceeding ten miles square) as may, by cession 
of particular States, and the acceptance of Congress, become the 
seat of government of the United States, and to exercise like authority 
over all places purchased by the consent of the legislature of the 



Powers of 
Congress. 



Loans. 

Commerce. 



Naturaliza- 
tion. 

Coin. 



Counter- 
feiting. 

Post office. 

Patents and 
copyrights. 

Cfcurts. 
Piracies. 

War. 



Navy. 

Slilitary 
and naval 
rules. 
Militia. 



Federal 
district and 
other 
places. 



390 



APPENDIX 



Implied 
powers. 



Tax on 
importation 
of slaves. 



Writ of 
habeas 
corpus. 

Ex post 
facto law. 
Direct 
taxes. 

Free trade 
among the 
States. 
No com- 
mercial dis- 
crimination 
between 
States. 

Drawing 
money 
from 
treasury. 

Titles of 
nobility in- 
terdicted. 



Powers 
denied to 
the States. 



State in which the same shall be, for the erection of forts, magazines, 
arsenals, dockyards, and other needful buildings. 

18. To make all laws which shall be necessary and proper for 
carrying into execution the foregoing powers, and all other powers 
vested by this Constitution in the Government of the United States, 
or in any department or officer thereof. 

[For other powers, see Article II, Section 1; Article III, Sections 
2 and 3 ; Article IV, Sections 1-3 ; and Article V.] 

Sec. 9. — 1. The migration or importation of such persons as any 
of the States now existing shall think proper to admit, shall not 
be prohibited by Congress prior to the year one thousand eight 
hundred and eight; but a tax or duty may be imposed on such im- 
portation, not exceeding ten dollars for each person. 

2. The privilege of the writ of habeas corpus shall not be sus- 
pended, unless when, in cases of rebellion or invasion, the public 
safety may require it. 

3. No bill of attainder or ex post facto law shall be passed. 

4. No capitation or other direct tax shall be laid,, unless in pro- 
portion to the census or enumeration hereinbefore directed to be 
taken . 

5. No tax or duty shall be laid on articles exported from any 
State. 

6. No preference shall be given, by any regulation of commerce 
or revenue, to the ports of one State over those of another; nor 
shall vessels bound to or from one State be obliged to enter, clear, 
or pay duties in another. 

7. No money shall be drawn from the treasury, but in conse- 
quence of appropriations made by law; and a regular statement 
and account of the receipts and expenditures of all public money 
shall be published from time to time. 

8. No title of nobility shall be granted by the United States; 
and no person holding ar.y office of profit or trust under them 
shall, without the consent of the Congress accept of any present, 
emolument, office, or title, of any kind whatever, from any king, 
prince, or foreign State. 

Sec. 10. — 1. No State shall enter into any treaty, alliance, or 
confederation; grant letters of marque and reprisal; coin money; 
emit bills of credit; make anything but gold and silver coin a tender 
in payment of debts; pass any bill of attainder, ex post facto law, 
or law impairing the obligation of contracts, or grant any title of 
nobility. 

2. No State shall, without the consent of the Congress, lay any 



APPENDIX 



391 



impost or duties on imports or exports, except what may be abso- 
lutely necessary for executing its inspection laws; and the net 
produce of all duties and imposts, laid by any State on imports 
or exports, shall be for the use of the treasury of the United States; 
and all such laws shall be subject to the revision and control of the 
Congress. 

3. No State shall, without the consent of Congress, lay any duty 
of tonnage, keep troops or ships of war in time of peace, enter 
into any agreement or compact with another State or with a foreign 
power, or engage in war, unless actually invaded or in such imminent 
danger as will not admit of delay. 

ARTICLE II. 

Section 1. — 1. The Executive power shall be vested in a Presi- 
dent of the United States of America. He shall hold his office 
during the term of four years, and, together with the Vice-President 
chosen for the same term, be elected as follows : 

2. Each State shall appoint, in such manner as the Legislature 
thereof may direct, a number of Electors equal to the whole number 
of Senators and Representatives to which the State may be entitled 
in the Congress; but no Senator or Representative, or person holding 
an office of trust or profit under the United States, shall be ap- 
pointed an Elector. 

3. [The Electors shall meet in their respective States and vote, 
by ballot, for two persons, of whom one at least shall not be an 
inhabitant of the same State with themselves. And they shall 
make a list of all the persons voted for, and of the number of votes 
for each; which list they shall sign and certify, and transmit, sealed, 
to the seat of the government of the United States, directed to 
the President of the Senate. The President of the Senate shall, in 
the presence of the Senate and House of Representatives, open all the 
certificates, and the votes shall then be counted. The person 
having the greatest number of votes shall be the President, if such 
number be a majority of the whole number of Electors appointed; 
and if there be more than one who have such majority, and have an 
equal number of votes, then the House of Representatives shall 
immediately choose by ballot one of them for President; and if 
no person have a majority, then from the five highest on the list, 
the said house shall, in like manner, choose the President. But in 
choosing the President the vote shall be taken by States, the repre- 
sentation from each State having one vote; a quorum for this purpose 
shall consist of a member or members from two-thirds of the States, 



The Execu- 
tive power. 



Election of 
President 
and Vice- 
Presidento 

V 



392 



APPENDIX 



Time of 
choosing 
electors and 
casting elec- 
toral vote. 
Require- 
ments for 
office of 
President. 



Proviso in 
case of 
death, etc., 
of the 
President. 



Compensa- 
tion of 
President. 



President's 
oath of 
office. 



and a majority of all the States shall be ncessary to a choice. In 
every case after the choice of the President, the person having the 
greatest number of votes of the Electors shall be the Vice-President. 
But if there should remain two or more who have equal votes, the 
Senate shall choose from them, by ballot, the Vice-President.] 

This clause has been superseded by the Twelfth Amendment to the Constitution. 

4. The Congress may determine the time of choosing the Elec- 
tors, and the day on which they shall give their votes; which day 
shall be the same throughout the United States. 

5. No person except a natural-born citizen or a citizen of the 
United States at the time of the adoption of this Constitution, shall 
be eligible to the office of President; neither shall any person be 
eligible to that office who shall not have attained the age of thirty- 
five years, and been fourteen years a resident within/ the United 
States. 

[See also Article II, Section 1, and Foi rteenth Amendment. .] 

6. In case of the removal of the President from office, or of his 
death, resignation, or inability to discharge the powers and duties 
of the said office, the same shall devolve on the Vice-President, 
and the Congress may, by law, provide for the case of removal, 
death, resignation, or inability, both of the President and Vice- 
President, declaring what officer shall then act as President, and 
such officer shall act accordingly, until the disability be removed, 
or a President shall be elected. 

7 The President shall, at stated times, receive for his services a 
compensation, which shall neither be increased nor diminished 
during the period for which he shall have been elected, and he shall 
not receive within that period any other emolument from the United 
States or any of them. 

8. Before he enters on the execution of his office, he shall take 
the following oath or affirmation: "I do solemnly swear (or affirm) 
that I will faithfully execute the office of President of the United 
States, and will, to the best of my ability, preserve, protect, and 
defend the Constitution of the United States." 

Note. — Agreeably with the powers conferred by Clause 6, Section 1 , Article II, 
of the Constitution, Congress in 1886 provided for the succession to the Presidency 
in case of the removal, death, resignation, or inability of the President or Vice- 
President by directing that the office devolve first upon the Secretary of State, 
and in case of his inability, for any reason, to perform its duties, it should pass, 
successively, upon similar, conditions, to the Secretary of the Treasury, Secretary 
of War, Attorney-General, Postmaster-General, Secretary of the Navy, and Sec- 
retary of the Interior. If, however, any one of these officers should be of foreign 
birth, the Presidency passes to the next named in the list. 



APPENDIX 



393 



Sec. 2. — 1. The President shall be commander in chief of the 
Army and Navy of the United States, and of the militia of the 
several States when called into the actual service of the United 
States; he may require the opinion, in writing, of the principal 
officer in each of the executive departments, upon any subject 
relating to the duties of their respective offices, and he shall have 
power to grant reprieves and pardons for offenses ajrainst the United 
States, except in cases of impeachment. 

2. He shall have power, by and with the advice and consent of 
the Senate, to make treaties, provided two-thirds of the Senators 
present concur; and he shall nominate, and, by and with the advice 
and consent of the Senate, shall appoint ambassadors, other pub- 
lic ministers and consuls, Judges of the Supreme Court, and all 
other officers of the United States whose appointments are not 
herein otherwise provided for, and which shall be established by 
law; but the Congress may, by law, vest the appointment of such 
inferior officers as they think proper in the President alone, in the 
courts of law, or in the heads of departments. 

3. The President shall have power to fill up all vacancies that 
may happen during the recess of the Senate, by granting commis- 
sions, which shall expire at the end of their next session. I 

Sec. 3. — He shall, from time to time, give to the Congress infor- 
mation of the state of the Union, and recommend to their consid- 
eration such measures as he shall judge necessary and expedient; 
he may, on extraordinary occasions, convene both houses, or either 
of them, and, in case of disagreement between them with respect 
to the time of adjournment, he may adjourn them to such time as 
he shall think proper; he shall receive ambassadors and other public 
ministers; he shall take care that the laws be faithfully executed, 
and shall commission all the officers of the United States. 

[See also Article I, Section 5.] 

Sec. 4. — The President, Vice-President, and all civil officers of 
the United States shall be removed from office on impeachment 
for and conviction of treason, bribery, or other high crimes and 
misdemeanors. 

[See also A Hide 7, Sections 2 and 3.] 

ARTICLE HI. 

Section 1. — The judicial power of the United States shall be 

vested in one Supreme Court, and in such inferior courts as the 

Congress may from time to time ordain and establish. The Judges, 

both of the Supreme and inferior courcs, shall hold their offices 

£6 



Powers and 
duties of 
the Presi- 
dent. 



Treaties 
and ap- 
pointments. 



Filling 
vacancies. 



Removal 
from office 
of Presi- 
dent. 



Judicial 
power of 
the United 
States. 



394 



APPENDIX 



Extent of 
judicial 
[jiovver of 
tiie United 
.tt.ites. 



Rules of 
court pro- 
cedure. 



Jury. 



Treason: 
how define! 
and pun- 
ished. 



during good behavior, and shall, at stated times, receive for their 
services a compensation which shall not be diminished during 
their continuance in office. 

[See also Eleventh Amendment.] 

Sec. 2. — 1. The judicial power shall extend to all cases, in law 
and equity, arising under this Constitution, the laws of the United 
States, and treaties made, or which shall be made, under their 
authority; to all cases affecting ambassadors, other public min- 
isters, and consuls; to all cases of admiralty and maritime juris- 
diction; to controversies to which the United States shall be a party; 
to controversies between two or more States; between a State and 
citizens of another State; between citizens of different States; 
between citizens of the same State claiming lands under grants of 
different States; and between a State, or the citizens thereof, and 
foreign States, citizens, or subjects. 

2. In all cases affecting ambassadors, other public ministers, 
and consuls, and those in which a State shall be a party, the Supreme 
Court shall have original jurisdiction. In all the other cases before 
mentioned the Supreme Court shall have appellate jurisdiction, 
both as to law and fact, with such exceptions and under such regula- 
tions as the Congress shall make. 

3. The trial of all crimes, except in cases of impeachment, shall 
be by jury; and such trial shall be held in the State where the said 
crimes shall have been committed; but when not committed within 
any State, the trial shall be put at such place or places as the Con- 
gress may, by law, have directed. 

[See also Fifth, Sixth, Seventh, and Eighth Amendments.] 

Sec. 3. — 1. Treason against the United States shall consist only 

in levying war against them, or in adhering to their enemies, giving 

them aid and comfort. 

2. No person shall be convicted of treason, unless on the testi- 
mony of two witnesses to the same overt act, or on confession in 
open court. 

3. The Congress shall have power to declare the punishment of 
treason; but no attainder of treason shall work corruption of blood, 
or forfeiture, except during the life of the person attainted. 



State acts 
and rec- 
ords. 



ARTICLE IV. 

Section 1. — Full faith and credit shall be given in each State 
to the public acts, records, and judicial proceedings of every other 
State. And the Congress may, by general laws, prescribe the man- 



APPENDIX 



395 



ner in which such acts, records, and proceedings shall be proved, and 
the effect thereof. 

[.See also Fourteenth Amendment.'] 

Sec. 2. — 1. The citizens of each State shall be entitled to all the 
privileges and immunities of citizens in the several States. 

2. A person charged in any State with treason, felony, or other 
crime, who shall flee from justice and be found in another State, 
shall, on demand of the executive authority of the State from which 
he fled, be delivered up, to be removed to the State having jurisdic- 
tion of the crime. 

3, No person held to service or labor in one State, under the laws 
thereof, escaping into another, shall, in consequence of any law or 
regulation therein, be discharged from such service or labor, but 
shall be delivered up on claim of the party to whom such service cr 
labor may be due. 

Sec. 3. — 1. New States may be admitted by the Congress into 
this Union; but no new State shall be formed or erected within 
the jurisdiction of any other State; nor any State be formed by 
the junction of two or more States, or parts of States, without the 
consent of the Legislatures of the States concerned, as well as of 
Congress. 

2. The Congress shall have power to dispose of and make alt 
needful rules and regulations respecting the territory or other 
property belonging to the United States; and nothing in this Con- 
stitution shall be so construed as to prejudice any claims of the 
United States, or of any particular State. 

Sec. 4. — The United States shall guarantee to every State in this 
Union a republican form of government, and shall protect each 
of them against invasion ; and, on application of the Legislature 
or of the Executive (when the Legislature cannot be convened), 
against domestic violence. 



Privileges 
of citizens. 

Fugitives 

from 

justice. 



Fugitive 
slaves. 



Admission 
of new 
States. 



Territories. 



Republican 
government 
guaranteed. 



ARTICLE V. 

Section 1. — The Congress, whenever two-thirds of both houses How 

shall deem it necessary, shall propose amendments to this Const i- amend - 

tution, or, on the application of the Legislatures of two-thirds of ments * othe 

, f, . ° Constitu- 

the several States, shall call a convention for proposing amendments, tion shall be 

which, in either case, shall be valid, to all intents and purposes, as made. 
part of this Constitution, when ratified by the Legislatures of three- 
fourths of the several States or by conventions in three-fourths 
thereof, as the one or the other mode of ratification may be proposed 
by the Congress; -provided, that no amendment which may be made 



396 



APPENDIX 



Debts. 



The Con- 
stitution 
the supreme 
law. 



Support of 
the Consti- 
tution re- 
quired in 
official 
oath. 



Ratifica- 
tion. 



prior to the year one thousand eight hundred and eight shall, in 
any manner, affect the first and fourth clauses in the ninth section 
of the first article; and that no State, without its consent, shall be 
deprived of its equal suffrage in the Senate. 

ARTICLE VI. 

Section 1. — 1. All debts contracted and engagements entered 
into, before the adoption of this Constitution, shall be as valid 
against the United States, under this Constitution, as under the 
Confederation. 

[See also Fourteenth Amendment, Section 4-] 

2. This Constitution, and the laws of the United States which 
shall be made in pursuance thereof, and all treaties made, or which 
shall be made, under the authority of the United States, shal| be 
the supreme law of the land; and the Judges in every State shall 
be bound thereby, anything in the Constitution or laws of any 
State to the contrary notwithstanding. 

3. The Senators and Representatives before mentioned, and the 
members of the several State Legislatures, and all executive and 
judicial officers, both of the United States and of the several States, 
shall be bound, by oath or affirmation, to support this Constitu- 
tion; but no religious test shall ever be required as a qualification 
to any office or public trust under the United States. 

ARTICLE VII. 

Section 1. — The ratification of the conventions of nine States 
shall be sufficient for the establishment of this Constitution between 
the States so ratifying the same. 

Done in convention, by the unanimous consent of the States present, 
the seventeenth day of September, in the year of our Lord one 
thousand seven hundred and eighty-seven, and of the independ- 
ence of the United States of America the twelfth. In witness 
whereof, we have hereunto subscribed our names. 

GEORGE WASHINGTON. 
President, and Deputy from Virginia. 

CONNECTICUT. 

WILLIAM SAMUEL JOHN- 
SON, 
ROGER SHERMAN. 



NEW HAMPSHIRE. 

JOHN LANGDON, 
NICHOLAS GILMAN. 



MASSACHUSETTS. 

NATHANIEL GORHAM, 
RUFUS KING. 



NEW YORK. 

ALEXANDER HAMILTON. 



APPENDIX 



397 



NEW JERSEY. 

WILLIAM LIVINGSTON, 
DAVID BREARLY, 
WILLIAM PATTERSON, 
JONATHAN DAYTON. 

PENNSYLVANIA. 

BENJAMIN FRANKLIN, 
THOMAS MIFFLIN, 
ROBERT MORRIS, 
GEORGE CLYMER, 
THOMAS FITZSIMONS, 
JARED INGERSOLL, 
JAMES WILSON, 
GOUVERNEUR MORRIS. 

DELAWARE. 

GEORGE READ, 
GUNNING BEDFORD, Jr., 
JOHN DICKINSON, 
RICHARD BASSETT, 
JACOB BROOM. 



MARYLAND. 

JAMES McHENRY, 
DANIEL of St. Th. JENIFER, 
DANIEL CARROLL. 

VIRGINIA. 

JOHN BLAIR, 
JAMES MADISON, Jr. 

NORTH CAROLINA. 

WILLIAM BLOUNT, 
RICHARD DOBBS SPAIGHT, 
HUGH WILLIAMSON. 

SOUTH CAROLINA. 

JOHN RUTLEDGE, 
CHARLES C. PINCKNEY, 
CHARLES PINCKNEY, 
PIERCE BUTLER. 

GEORGIA. 

WILLIAM FEW, 
ABRAHAM BALDWIN. 



Attest: 



WILLIAM JACKSON, 

Secretary. 



AMENDMENTS 



ARTICLE I. 

[The first ten Articles were proposed September 25, 17S9, and rati- 
fied December 15, 1791.] 

Section 1. — Congress shall make no law respecting an estab- Religious 
lishment of religion, or prohibiting the free exercise thereof, or toleration. 
abridging the freedom of speech or of the press; or the right of the Freedom of 
people peaceably to assemble, and to petition the Government for ^J*^ 11 and 
a redress of Grievances. 



of press. 



ARTICLE II 

Section 1. — A well-regulated militia being necessary to the Right to 
security of a free State, the right of the people to keep and bear arms bear a™ 15 * 
shall not be infringed. 



398 



APPENDIX 



ARTICLE III. 

Section 1. — No soldier shall, in time of peace, be quartered in 
any house without the consent of the owner; nor in time of war, 
but in a manner to be prescribed by law. 

ARTICLE IV. 

Section 1 . — The right of the people to be secure in their per- 
sons, houses, papers, and effects, against unreasonable searches 
and seizures, shall not be violated, and no warrants shall issue but 
upon reasonable cause, supported by oath or affirmation, and par- 
ticularly describing the place to be searched and the person or things I 
to be seized. 

ARTICLE V. 

Section 1. — No person shall be held to answer for a capital or 
otherwise infamous crime, unless on a presentment or indictment 
of a grand jury, except in cases arising in the land or naval forces, 
or in the militia when in actual service in time of war or public 
danger; nor shall any person be subject for the same offense to be 
twice put in jeopardy of life or limb; nor shall be compelled in any 
criminal case to be a witness against himself; nor be deprived of life, 
liberty, or property, without due process of law; nor shall private 
property be taken for public use without just compensation. 

ARTICLE VI. 

Section 1. — In all criminal prosecutions the accused shall enjoy 
the right to a speedy and public trial, by an impartial jury of the 
State and district wherein the crime shall have been committed, 
which district shall have been previously ascertained by law, and 
to be informed of the nature and cause of the accusation; to be 
confronted with the witnesses against him; to have compulsory 
process for obtaining witnesses in his favor, and to have the assist- 
ance of counsel for his defense. 



ARTICLE VII. 

Section 1. — In suits at common law, where the value in con- 
troversy shall exceed twenty dollars, the right of trial by jury shall 
be preserved; and no fact, tried by jury, shall be otherwise re- 
examined in any court of the United States than according to the 
rules of common law. 



APPENDIX 



399 



ARTICLE VIII. 

Section 1. — Excessive bail shall not be required, nor excessive Bails, fines, 

fines imposed, nor cruel and unusual punishments inflicted. punish- 

ments. 



Section 1. 



ARTICLE IX. 
-The enumeration in the 



Constitution of certain Constitu- 



nghts shall not be construed to deny or disparage others retained t ,onal ana 
, ., , State rights. 

by the people. 

ARTICLE X. 

Section 1. — The powers not delegated to the United States by Powers re- 

the Constitution, nor prohibited by it to the States, are reserved to served *° 

States, 
the States, respectively, or to the people. 

ARTICLE XL 

Section 1. — The judicial power of the United States shall not Limitation 
be construed to extend to any suit in law or equity, commenced of judicial 
or prosecuted against one of the United States by the citizens of we 
another State, or by citizens or subjects of any .foreign State. — 
[Proposed March 5, 1704 ; ratified January 8, 1798.] 



ARTICLE XII. 

Section 1. — The electors shall meet in their respective States, 
and vote by ballot for President and Vice-President, one of whom, 
at least, shall not be an inhabitant of the same State with them- 
selves; they shall name in their ballots the person voted for as 
President, and in distinct ballots the person voted for as Vice- 
President; and they shall make distinct lists of all persons voted 
for as President, and of all persons voted for as Vice-President, 
and of the number of votes for each, which lists they shall sign and 
certify, and transmit, sealed, to the seat of the Government of the 
United States, directed to the President of the Senate. The Presi- 
dent of the Senate shall, in the presence of the Senate and House of 
Representatives, open all the certificates, and the votes shall then 
be counted. The person having the greatest number of votes for 
President shall be the President, if such a number be a majority 
of the whole number of Electors appointed; and if no person have 
such a majority, then from the persons having the highest numbers, 
not exceeding three, on the list of those voted for as President, the 
House of Representatives shall choose immediately, by ballot, the 



Election of 
President 
and Vice- 
Presidents 



400 



APPENDIX 



President. But in choosing the President, the votes shall be taken 
by States, the representation from each State having one vote; a 
quorum for this purpose shall consist of a member or members from 
two-thirds of the States, and a majority of all the States shall be 
necessary to a choice. And if the House of Representatives shall 
not choose a President, whenever the right of choice shall devolve 
upon them, before the fourth day of March next following, then the 
Vice-President shall act as President, as in case of the death or 
other constitutional disability of the President. The person having 
the greatest number of votes as Vice-President shall be the Vice- 
President, if such number be a majority of the whole number of 
Electors appointed; and if no person have a majority, theri from 
the two highest numbers on the list the Senate shall choose the 
Vice-President; a quorum for the purpose shall consist of two-thirds 
of the whole number of Senators, and a majority of the whole 
number shall be necessary to a choice. But no person constitution- 
ally ineligible to the office of President shall be eligible to that of 
Vice-President of the United States. — [Proposed December 12, 1803 ; 
ratified September 25, 1804.] 

ARTICLE XIII. 

Section 1. — Neither slavery nor involuntary servitude, except as 
a punishment for crime whereof the party shall have been duly 
convicted, shall exist within the United States, or any place sub- 
ject to their jurisdiction. 

Sec. 2. — Congress shall have power to enforce this article by 
appropriate legislation. — [Declared ratified December 18, 1865.] 



ARTICLE XIV. 

Section 1. — All persons born or naturalized in the United States 
and subject to the jurisdiction thereof, are citizens of the United 
States and of the State wherein they reside. No State shall make 
or enforce any law which shall abridge the privileges or immunities 
of citizens of the United States; nor shall any State deprive any 
person of life, liberty, or property, without due process of law, nor 
deny to any person within its jurisdiction the equal protection of the 
laws. 

Sec. 2. — Representatives shall be apportioned among the several 
States, according to their respective numbers, counting the whole 
number of persons in each State, excluding Indians not taxed. But 
when the right to vote at any election for the choice of Electors, 



APPENDIX 



401 



for President and Vice-President of the United States, Repre- 
sentatives in Congress, the executive and judicial officers of a State, 
or the members of the Legislature thereof, is denied to any of the 
male inhabitants of such State, being twenty-one years of age and 
citizens of the United States, or in any way abridged, except for 
participation in rebellion, or other crime, the basis of representation 
therein shall be reduced in the proportion which the number of 
such male citizens shall bear to the whole number of male citizens 
twenty-one years of age in such State. 

Sec. 3. — No person shall be a Senator or Representative in Con- 
gress, or Elector of President and Vice-President, or hold any office, 
civil or military, under the United States, or under any State, who, 
having previously taken an oath as a member of Congress, or as an 
officer of the United States, or as a member of any State Legisla- 
ture, or as an executive or judicial officer of any State, to support 
the Constitution of the United States, shall have engaged in insur- 
rection or rebellion against the same, or given aid or comfort to 
the enemies thereof. But Congress may, by a vote of two-thirds of 
each house, remove such disability. 

Sec. 4. — The validity of the public debt of the United States, 
authorized by law, including debts incurred for payment of pen- 
sions and bounties for services in suppressing insurrection or rebellion, 
shall not be questioned. But neither the United States nor any 
State shall assume or pay any debt or obligation incurred in aid of 
insurrection or rebellion against the United States, or any claim for 
the loss or emancipation of any slave; but all such debts, obligations, 
and claims shall be held illegal and void. 

Sec. 5. — The Congress shall have power to enforce, by appropri- 
ate legislation, the provisions of this article. — [Declared ratified 
July 28, 1868.] 



Concerning 
those who 
rebel 

against the 
United 
States. 



Validity of 
thepublic 
deW. 



ARTICLE XV. 

Section 1. — The right of citizens of the United States to vote Rights of 
shall not be denied or abridged by the United States, or by any citizens not 
State, on account of race, color, or previous condition of servitude. 

Sec. 2. — The Congress shall have power to enforce this article by 
appropriate legislation. — [Declared ratified, March SO, 1870.] 



to be 
abridged. 



402 



APPENDIX 



IV 

THE PRESIDENT'S INSTRUCTIONS TO THE BOARD 

OF COMMISSIONERS TO THE PHILIPPINE 

ISLANDS. 

War Department, 
Washington, April 7, 1900. 
Sir : I transmit to you herewith the instructions of the President 
for the guidance of yourself and your associates as commissioners 
to the Philippine Islands. 

Very respectfully, Elihu Root, 

Secretary of War. 

Hon. William H. Taft, 

President Board of Commissioners 

to the Philippine Islands. 



Members 
of com- 
mission. 



Executive Mansion, April 7, 1900. 

Sir: In the message transmitted to the Congress on the 5th cf 
December, 1899, I said, speaking of the Philippine Islands: "As 
long as the insurrection continues the military arm must necessarily 
be supreme. But there is no reason why steps should not be taken 
from time to time to inaugurate governments, essentially popular 
in their form, as fast as territory is held and controlled by our troops. 
To this end I am considering the advisability of the return of the 
commission, or such of the members thereof as can be secured, to 
aid the existing authorities and facilitate this work throughout the 
islands." 

To give effect to the intention thus expressed, I have appointed 
Hon. William H. Taft, of Ohio; Prof. Dean C. Worcester, of Michi- 
gan; Hon. Luke E. Wright, of Tennessee; Hon. Henry C. Ide, of 
Vermont, and Prof. Bernard Moses, of California, commissioners 
to the Philippine Islands, to continue and perfect the work of or- 
ganizing and establishing civil government already commenced by 
the military authorities, subject in all respects to any laws which 
Congress may hereafter enact. 

The commissioners named will meet and act as a board, and the 
Hon. William H. Taft is designated as president of the board. It 
is probable that the transfer of authority from military command- 



APPENDIX 



403 



ers to civil officers will be gradual and will occupy a considerable 
period. Its successful accomplishment and the maintenance of 
peace and order in the meantime will require the most perfect co- 
operation between the civil and military authorities in the islands, 
and both should be directed during the transition period by the same 
executive department. The commission will therefore report to 
the Secretary of War, and all their actions will be subject to your 
approval and control. 

You will instruct the commission to proceed to the city of Manila, 
where they will make their principal office, and to communicate 
with the Military Governor of the Philippine Islands, whom you 
will at the same time direct to render to them every assistance within 
his power in the performance of their duties. Without hampering 
them by too specific instructions, they should in general be enjoined, 
after making themselves familiar with the conditions and needs of 
the country, to devote their attention in the first instance to the 
establishment of municipal governments in which the natives of 
the islands, both in the cities and in the rural communities, shall 
be afforded the opportunity to manage their own local affairs to the 
fullest extent of which' they are capable, and subject to the least 
degree of supervision and control which a careful study of their 
capacities and observation of the workings of native control show 
to be consistent with the maintenance of law, order, and loyalty. 
The next subject in order of importance should be the organization 
of government in the larger administrative divisions, corresponding 
to counties, departments, or provinces, in which the common interests 
of many or several municipalities, falling within the same tribal 
lines or the same natural geographical limits, may best be subserved 
by a common administration. Whenever the commission is of the 
opinion that the condition of affairs in the islands is such that the 
central administration may safely be transferred from military to 
civil control, they will report that conclusion to you, with their 
recommendations as to the form of central government to be estab- 
lished for the purpose of taking over the control. 

Beginning with the first day of September, 1900, the authority to 
exercise, subject to my approval, through the Secretary of War, 
that part of the power of government in the Philippine Islands 
which is of a legislative nature is to be transferred from the military 
governor of the islands to this commission, to be thereafter exercised 
by them in the place and stead of the military governor, under such 
rules and regulations as you shall prescribe, until the establishment 
of the civil central government for the islands contemplated in the 



To report 
to Secretary 
of War. 



Municipal 
govern- 
ments to be 
organized 
first. 



Then pro- 
vincial gov- 
ernments. 



Beginning 
of commis- 
sion's legis- 
lative 
power. 



404 



APPENDIX 



Scope of 
power. 



Military 
governor to 
remain 
temporarily 
chief ex- 
ecutive. 



Military 

posts 

continued. 



last foregoing paragraph, or until Congress shall otherwise provide. 
Exercise of this legislative authority will include the making of rules 
and orders, having the effect of law, for the raising of revenue by- 
taxes, customs duties, and imposts; the appropriation and expendi- 
ture of public funds of the islands; the establishment of an edu- 
cational system throughout the islands; the establishment of a 
system to secure an efficient civil service; the organization and 
establishment of courts ; the organization and establishment of 
municipal and departmental governments, and all other matters of 
a civil nature for which the military governor is now competent to 
provide by rules or orders of a legislative character. 

The commission will also have power, during the same period, 
to appoint to office such officers under the judicial, educational, 
and civil-service systems, and in the municipal and departmental 
governments, as shall be provided for. Until the complete transfer 
of control the military governor will remain the chief executive 
head of the government of the islands, and will exercise the executive 
authority now possessed by him and not herein expressly assigned 
to the commission, subject, however, to the rules and orders en- 
acted by the commission in the exercise of • the legislative powers 
conferred upon them. In the meantime the municipal and depart- 
mental governments will continue to report to the military governor, 
and be subject to his administrative supervision and control, under 
your direction; but that supervision and control will be confined 
within the narrowest limits consistent with the requirements that 
the powers of government in the municipalities and departments 
shall be honestly and effectively exercised and that law and order 
and individual freedom shall be maintained. 

All legislative rules and orders, establishments of government, 
and appointments to office by the commission will take effect 
immediately, or at such times as they shall designate, subject to 
your approval and action upon the coming in of the commission's 
reports, which are to be made from time to time as their action is 
taken. Wherever civil governments are constituted under the 
direction of the commission, such military posts, garrisons, and forces 
will be continued for the suppression of insurrection and brigandage, 
and the maintenance of law and order, as the military commander 
shall deem requisite, and the military forces shall be at all times 
subject under his orders to the call of the civil authorities for the 
maintenance of law and order and the enforcement of their authority. 
In the establishment of municipal governments the commission 
will take as the basis of their work the governments established by 



APPENDIX 



405 



the military governor under his order of August 8, 1899, and under 
the report of the board constituted by the military governor by his 
order of January 29, 1900, to formulate and report a plan of mu- 
nicipal government, of which his honor Cayetano Arellano, president 
of the Audiencia, was chairman, and they will give to the conclu- 
sions' of that board the weight and consideration which the high 
character and distinguished abilities of its members justify. In 
the constitution of department or provincial governments they will 
give especial attention to the existing government of the Island of 
Negros, constituted with the approval of the people of that island, 
under the order of the military governor of July 22, 1899, and after 
verifying, so far as may be practicable, the reports of the successful 
working of that government, they will be guided by the experience 
thus acquired, so far as it may be applicable to the condition exist- 
ing in other portions of the Philippines. They will avail themselves, 
to the fullest degree practicable, of the conclusions reached by the 
previous commission to the Philippines. 

In the distribution of powers among the governments organized 
by the commission, the presumption is always to be in favor of the 
smaller subdivision, so that all the powers which can properly be 
exercised by the municipal government shall be vested in that govern- 
ment, and all the powers of a more general character which can be 
exercised by the departmental government shall be vested in that 
government, and so that in the governmental system, which is the 
result of the process, the central government of the islands, following 
the example of the distribution of the powers between the States 
and the national Government of the United States, shall have no 
direct administration except of matters of purely general concern, 
and shall have only such supervision and control over local govern- 
ments as may be necessary to secure and enforce faithful and efficient 
administration by local officers. 

The many different degrees of civilization and varieties of custom 
and capacity among the people of the different islands preclude very 
definite instruction as to the part which the people shall take in the 
selection of their own officers; but these general rules are to be 
observed: That in all cases the municipal officers who administer 
the local affairs of the people are to be selected by the people, and 
that wherever officers of more extended jurisdiction are to be selected, 
in any way, natives of the islands are to be preferred, and, if they can 
be found competent and willing to perform the duties, they are to 
receive the offices in preference to any others. It will be necessary 
to fill some offices for the present with Americans which after a time 



Govern- 
ment of 
Negros- 



Presump- 
tion of 
power in 
favor of 
mik44<-i- 
political 
unit. 



Natives to 
be preferred 
for offices. 



406 



APPENDIX 



Merit sys- 
tem for 
civil service 
to be en- 
forced. 



Well-being 
of Filipinos 
aim of gov- 
ernment. 



American 
principles 
to be main- 
tained. 



Bill of 
rights. 



may well be filled by natives of the islands. As soon as practicable 
a system for ascertaining the merit and fitness of candidates for 
civil office should be put in force. An indispensable qualification 
for all offices and positions of trust and authority in the islands mubt 
be absolute and unconditional loyalty to the United States, and 
absolute and unhampered authority and power to remove and 
punish any officer deviating from that standard must at all times be 
retained in the hands of the central authority of the islands. 

In all the forms of government and administrative provisions 
which they are authorized to prescribe, the commission should I ear 
in mind that the government which they are establishing is designed 
not for our satisfaction, or for the expression of our theoretical 
views, but for the happiness, peace, and prosperity of the people of 
the Philippine Islands; and the measures adopted should be made to 
conform to their customs, their habits, and even their prejudices, to 
the fullest extent consistent with the accomplishment of the indis- 
pensable requisites of just and effective government. At the same 
time the commission should bear in mind, and the people of the 
islands should be made plainly to understand, that there are cer- 
tain great principles of government which have been made the basis 
of our governmental system, which we deem essential to the rule 
of law and the maintenance of individual freedom, and of which 
they have, unfortunately, been denied the experience possessed by 
us; that there are also certain practical rules of government which 
we have found to be essential to the preservation of these great 
principles of liberty and law; and that these principles and these 
rules of government must be established and maintained in their 
islands for the sake of their liberty and happiness, however much 
they may conflict with the customs or laws or procedure with which 
they are familiar. It is evident that the most enlightened thought 
of the Philippine Islands fully appreciates the importance of these 
principles and rules, and they will inevitably within a short time 
command universal assent. Upon every division and branch of 
the government of the Philippines, therefore, must be imposed these 
inviolable rules: 

That no person shall be deprived of life, liberty, or property with- 
out due process of law; that private property shall not be taken for 
public use without just compensation; that in all criminal prosecu- 
tions the accused shall enjoy the right to a speedy and public trial, 
to be informed of the nature and cause of the accusation, to be 
confronted with the witnesses against him, to have compulsory 
process for obtaining witnesses in his favor, and to have the assistance 



APPENDIX 



407 



of counsel fcr his defense; that excessive bail shall not be required, 
nor excessive fines imposed, nor cruel and unusual punishment 
inflicted; that no person shall be put twice in jeopardy for the same 
offense, or be compelled in any criminal case to be a witness against 
himself; that the right to be secure against unreasonable searches 
and seizures shall not be violated; that neither slavery nor in- 
voluntary servitude shall exist except as a punishment for crime; 
that no bill of attainder, or ex post facto law shall be passed ; that no 
law shall be passed abridging the freedom of speech or of the press, 
or of the rights of the people to peaceably assemble and petition the 
Government for a redress of grievances; that no law shall be made 
respecting an establishment of religion, or prohibiting the free 
exercise thereof, and that the free exercise and enjoyment of religious 
profession and worship without discrimination or preference shall 
forever be allowed. 

It will be the duty of the commission to make a thorough in- 
vestigation into the titles to the large tracts of land held or claimed 
by individuals or by religious orders; into the justice of the claims 
and complaints made against such landholders by the people of 
the islands, or any part of the people, and to seek by wise and peace- 
able measures a just settlement of the controversies and redress 
of the wrongs which have caused strife and bloodshed in the past. 
In the performance of this duty the commission is enjoined to see 
that no injustice is done; to have regard for substantial right and 
equity, disregarding technicalities so far as substantial right permits, 
and to observe the following rules: That the provision of the Treaty 
of Paris, pledging the United States to the protection of all rights of 
property in the islands, and as well the principle of our own Govern- 
ment, which prohibits the taking of private property without due 
process of law, shall not be violated ; that the welfare of the people of 
the islands, which should be a paramount consideration, shall be 
attaine 1 consistently with this rule of property right; that if it- 
becomes necessary for the public interest of the people of the islands 
to dispose of claims to property which the commission finds to be 
not lawfully acquired and held, disposition shall be made thereof 
by due legal procedure, in which there shall be full opportunity for 
fair and impartial hearing and judgment; that if the same public 
interests require the extinguishment of property rights lawfully 
acquired and held, due compensation shall be made out of the public 
treasury therefor; that no form of religion and no minister of religion 
shall be forced upon any community or upon any citizen of the 
islands; that upon the other hand no minister of religion shall be 



Land titles 
of religious 
orders to Le 
invesligaied 
and wrongs 
redressed. 



Rights of 
property to 
be main- 
tained. 



408 



APPENDIX 



Separation 
of state and 
church. 

Free pri- 
mary edu- 
cation. 



2«iglish 
language 
L o be 
taught. 

Taxation. 



Tribal 

holdings 

permitted. 



interfered with or molested in following his calling, and that the 
separation between state and church shall be real, entire, and 
absolute. 

It will be the duty of the commission to promote and extend, and, 
as they find occasion, to improve, the system of education already 
inaugurated by the military authorities. In doing this they should 
regard as of first importance the extension of a system of primary 
education which shall be free to all, and which shall tend to fit the 
people for the duties of citizenship and for the ordinary avocations 
of a civilized community. This instruction should be given, in the 
first instance, in every part of the islands in the language of the peo- 
ple. In view of the great number of languages spoken by the dif- 
ferent tribes, it is especially important to the prosperity of the 
islands that a common medium of communication may oe estab- 
lished, and it is obviously desirable that this medium should be the 
English language. Especial attention should be at once given to 
affording full opportunity to all the people of the islands to acquire 
the use of the English language. 

It may be well that the main changes which should be made in the 
system of taxation and in the body of the laws under which the 
people are governed, except such changes as have already been made 
by the military government, should be relegated to the civil govern- 
ment which is to be established under the auspices of the com- 
mission. It will, however, be the duty of the commission to inquire 
diligently as to whether there are any further changes which ought 
not to be delayed ; and if so, they are authorized to make such changes, 
subject to your approval. In doing so they are to bear in mind 
that taxes which tend to penalize or repress industry and enterprise 
are to be avoided; that provisions for taxation should be simple, 
so that they may be understood by the people; that they should 
affect the fewest practicable subjects of taxation which will serve 
for the general distribution of the burden. 

The main body of the laws which regulate the rights and obliga- 
tions of the people should be maintained with as little interference 
as possible. Changes made should be mainly in procedure, and in 
the criminal laws to secure speedy and impartial trials, and at the 
same time effective administration and respect for individual rights. 

In dealing with the uncivilized tribes of the islands the commission 
should adopt the same course followed by Congress in permitting 
the tribes of our North American Indians to maintain their tribal 
organization and government, and under which many of those tribes 
are now living in peace and contentment, surrounded by a civiliza- 



APPENDIX 



409 



rights of 
the people. 



tion to which they are unable or unwilling to conform. Such tribal 
governments should, however, be subjected to wise and firm regula- 
tion ; and, without undue or petty interference, constant and active 
effort should be exercised to prevent barbarous practices and intro- 
duce civilized customs. 

Upon all officers and employees of the United States, both civil Respect foi 
and military, should be impressed a sense of the duty to observe P ersonal 
not merely the material but the personal and social rights of the 
people of the islands, and to treat them with the same courtesy and 
respect for their personal dignity which the people of the United 
States are accustomed to require from each other. 

The articles of capitulation of the city of Manila on the 13th of 
August, 1898, concluded with these words: 

"This city, its inhabitants, its churches and religious worship, 
its educational establishments, and its private property of all descrip- 
tions are placed under the special safeguard of the faith and honor 
of the American army." 

I believe that this pledge has been faithfully kept. As high and 
sacred an obligation rests upon the Government of the United States 
to give protection for property and life, civil and religious freedom, 
and wise, firm, and unselfish guidance in the paths of peace and pros- 
perity to all the people of the Philippine Islands. I charge this com- 
mission to labor for the full performance of this obligation, which 
concerns the honor and conscience of their country, in the firm hope 
that through their labors all the inhabitants of the Philippine Islands 
may come to look back with gratitude to the day when God gave 
victory to American arms at Manila and set their land und«r the 
sovereignty and the protection of the people of the United States. 

William McKinley. 



AN ACT TEMPORARILY TO PROVIDE FOR THE AD- 
MINISTRATION OF THE AFFAIRS OF CIVIL GOV- 
ERNMENT IN THE PHILIPPINE ISLANDS, 
AND FOR OTHER PURPOSES. 



Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled, That the action of 
the President of the United States in creating the Philippine Com- 
mission and authorizing said commission to exercise the powers 
of government to the extent and in the manner and form and subject 
27 



Acts of the 
President 
concerning, 
and through 
the commis- 
sion con- 
firmed. 



410 



APPENDIX 



Governor, 
vice-gov- 
ernor, and 
commis- 
sioners to 
be appoint- 
ed by the 
President. 

Tariff of 
duties. 



President 
to main- 
tain sover- 
eignty and 
authority of 
the United 
States. 



to the regulation and control set forth in the instructions of the 
President to the Philippine Commission, dated April 7, 1900, and 
in creating the offices of civil governor and vice-governor of the 
Philippine Islands, and authorizing said civil governor and vice- 
governor to exercise the powers of government to the extent and 
in the manner and form set forth in the Executive order dated June 
21, 1901, and in establishing four executive departments of govern- 
ment in said islands as set forth in the act of the Philippine Com- 
mission, entitled " An act providing an organization for the Depart- 
ments of the Interior, of Commerce and Police, of Finance and 
Justice, and of Public Instruction," enacted September 6, 1901, is 
hereby approved, ratified, and confirmed, and until otherwise pro- 
vided by law the said islands shall continue to be governed as 
thereby and herein provided, and all laws passed hereafter by the 
Philippine Commission shall have an enacting clause as follows: 
"By authority of the United States, be it enacted by the Philippine 
Commission." The provisions of section eighteen hundred and 
ninety-one of the Revised Statutes of 1878 shall not apply to the 
Philippine Islands. 

Future appointments of civil governor, vice-governor, mem- 
bers of said commission, and heads of executive departments shall 
be made by the President, by and with the advice and consent of 
the Senate. 

Sec. 2. — That the action of the President of the United States 
heretofore taken by virtue of the authority vested in him as com- 
mander in chief of the army and navy, as set forth in his order 
of July 12, 1898, whereby a tariff of duties and taxes as set forth by 
said order was to be levied and collected at all ports and places in 
the Philippine Islands upon passing into the occupation and pos- 
session of the forces of the United States, together with the sub- 
sequent amendments of said order, are hereby approved, ratified, 
and confirmed, and the actions of the authorities of the government 
of the Philippine Islands, taken in accordance with the provisions of 
said order and subsequent amendments, are hereby approved: 
provided, that nothing contained in this section shall be held to 
amend or repeal an act entitled "An act temporarily to provide 
revenue for the Philippine Islands, and for other purposes," approved 
March 8, 1902. 

Sec. 3. — That the President of the United States, during such 
time as and whenever the sovereignty and authority of the United 
States encounter armed resistance in the Philippine Islands, until 
otherwise provided by Congress, shall continue to regulate and 



APPENDIX 



411 



control commercial intercourse with and within said islands by 
such general rules and regulations as he, in his discretion, may 
deem most conducive to the public interests and the general welfare. 

Sec. 4. — That all inhabitants of the Philippine Islands continuing 
to reside therein, who were Spanish subjects on the 11th day of April, 
1899, and then resided in said islands, and their children born sub- 
sequent thereto, shall be deemed and held to be citizens of the Philip- 
pine Islands and as such entitled to the protection of the United 
States, except such as shall have elected to preserve their allegiance 
to the Crown of Spain in accordance with the provisions of the 
treaty of peace between the United States and Spain signed at Paris, 
December 10, 1898. 

Sec. 5. — That no law shall be enacted in said islands which shall 
deprive any person of life, liberty, or property without due process 
of law, or deny to any person therein the equal protection of the laws. 

That in all criminal prosecutions the accused shall enjoy the 
right to be heard by himself and counsel, to demand the nature and 
cause of the accusation against him, to have a speedy and public 
trial, to meet the witnesses face to face, and to haA^e compulsory 
process to compel the attendance of witnesses in his behalf. 

That no person shall be held to answer for a criminal offense 
without due process of law; and no person for the same offense 
shall be twice put in jeopardy of punishment, nor shall be com- 
pelled in any criminal case to be a witness against himself. 

That all persons shall before conviction be bailable by sufficient 
sureties, except for capital offenses. 

That no law impairing the obligation of contracts shall be enacted. 

That no person shall be imprisoned for debt. 

That the privilege of the writ of habeas corpus shall not be sus- 
pended, unless when, in cases of rebellion, insurrection, or invasion 
the public safety may require it, in either of which events the same 
may be suspended by the President, or by the governor, with the 
approval of the Philippine Commission, wherever during such period 
the necessity for such suspension shall exist. 

That no ex post facto law or bill of attainder shall be enacted. 

That no law granting a title of nobility shall be enacted, and no 
person holding any office of profit or trust in said islands, shall, 
without the consent of the Congress of the United States, accept 
any present, emolument, office, or title of any kind whatever from 
any king, queen, prince, or foreign state. 

That excessive bail shall not be required, nor excessive fines im- 
posed, nor cruel and unusual punishment inflicted. 



Citizens 
of the 
Philippine 
Islands. 



Bill of 
rights. 



412 APPENDIX 

That the right to be secure against unreasonable searches and 
seizures shall not be violated. 

That neither slavery nor involuntary servitude, except as a pun- 
ishment for crime whereof the party shall have been duly convicted, 
shall exist in said islands. 

That no law shall be passed abridging the freedom of speech or 
of the press, or the right of the people peaceably to assemble and 
petition the government for redress of grievances. 

That no law shall be made respecting an establishment of religion 
or prohibiting the free exercise thereof, and that the free exercise 
and enjoyment of religious profession and worship, without dis- 
crimination or preference, shall forever be allowed. 

That no money shall be paid out of the treasury except in pur- 
suance of an appropriation by law. 

That the rule of taxation in said islands shall be uniform. 

That no private or local bill which may be enacted into law shall 
embrace more than one subject, and that subject shall be expressed 
in the title of the bill. 

That no warrant shall issue but upon probable cause, supported 
by oath or affirmation, and particularly describing the place to be 
searched and the person or things to be seized. 

That all money collected on any tax levied or assessed for a spe- 
cial purpose shall be treated as a special fund in the treasury and 
paid out for such purpose only. 

Sec. 6. — That whenever the existing insurrection in the Philip- 
pine Islands shall have ceased and a condition of general and complete 
peace shall have been established therein, and the. fact shall be cer- 
tified to the President by the Philippine Commission, the President, 
upon being satisfied thereof, shall order a census of the Philippine 
Islands to be taken by said Philippine Commission. . . . 

Sec. 7. — That two years after the completion and publication of 
the census, in case such condition of general and complete peace 
with recognition of the authority of the United States shall have 
continued in the territory of said islands not inhabited by Moros 
or other non-Christian tribes, and such facts shall have been certi- 
fied to the President by the Philippine Commission, the President, 
upon being satisfied thereof, shall direct said commission to call, 
and the commission shall call, a general election for the choice of 
delegates to a popular assembly of the people of said territory in 
the Philippine Islands, which shall be known as the Philippine 
Assembly. After said assembly shall have convened and organized, 
ail the legislative power heretofore conferred on the Philippine 



APPENDIX 413 

Commission m all that part of said islands not inhabited by Moros 
or other non-Christian tribes shall be vested in a legislature con- 
sisting of two houses — the Philippine Commission and the Philippine 
Assembly. Said assembly shall consist of not less than fifty nor 
more than one hundred members to be apportioned by said com- 
mission among the provinces as nearly as practicable according to 
population: 'provided, that no province shall have less than one 
member: and provided further, that provinces entitled by popula- 
tion to more than one member may be divided into such convenient 
districts as the said commission may deem best. — Approved, July 
1, 1902. 



INDEX 



Abso'utism, 2. 

Academy at Annapolis, 133; at 
West Point, 133. 

Adams, John, 150. 

Addresses to King, 26. 

Admission of a State, 262; of 
Texas, 265. 

Agriculture, Department of, 1S8. 

Alaska, purchase of, 164. 

Albany, 14; Congress of, 23. 

Alien and Sedition Law, 140; pro- 
tests against, 141. 

Ambassadors, 174. 

Amendment of bills, 96. 

Annapolis meeting, 50. 

Annexation treaties, 163. 

Appeal from Philippine to United 
States Supreme Court, 275. 

Appendix: Ordinance of 1787; 
Articles of Confederation; Con- 
stitution of United States; Presi- 
dent's instructions to Philip- 
pine Commission; Act providing 
Philipp ne Government, 371- 
413. 

Appointments, 167; of inferior 
officers, 168; attitude of Senate 
to presidential, 168. 

Appropriations for treaties, 159. 

Aristocracy, 13. 

Arizona, 261. 



Army, of United Colonies, 28; or- 
ganization of, 131; officers of, 
132; size of, 132; training for, 
133; temporary increases in, 
183; later organization of, 183. 

Arrests, 242. 

Articles of Confederation, 28, 377. 

Assemble, right to, 230. 

Assemblies and governors, 5. 

Assembly, Philippine, 275. 

Assistants, Court of, 17, 18. 

Association of United Colonies, 26. 

Attainder, bill of, 143, 220. 

Attendance in Congress, 80. 

Attorney-General, 186. 

Baltimore, Lord, 20. 

Bancroft, on Declaration of In- 
dependence, 35. 

Bankrupt, 122. 

Bankruptcy, 121. 

Belknap impeached, 213. 

Bequests, 349. 

Bicameral system, 58. 

Bill, passage of, 92; different kinds 
of, 93; final act on, 96; origin of, 
97; revenue, 97; of rights, 107, 
216, 217, 219, 221-224. 

Birth of a nation, 35. 

Births, registration of, 324. 

Blount impeached, 210. 
415 



416 



INDEX 



Bonds, use of, 113. 

Borrowing money, 112, 113. 

Brooklyn, 14. 

Burgesses, 12. 

Burr, 150; conspiracy, 226. 

Cabinet, 85; defects and advan- 
tages of American, 95; in presi- 
dential succession, 155; appoint- 
ment of, 169, 178, 190; con- 
trasted with English, 190; duties 
of, 190; English, 190. 

California, never a Territory, 262; 
admitted, 264. 

Campaign, 342; expenses, 343. 

Carolinas, government in, 20. 

Castle, man's house is his, 241. 

Catholics not voters, 16. 

Caucus, congressional, 340. 

Caveat emptor, 349. 

Charity, public, 354. 

Charter, colonial, 286. 

Chase impeached, 211. 

Church and state, 19. 

Church of England, 17. 

Cities, government of, 317-321. 

Citizen and party, 333; in relation 
to government, 324-355. 

Citizenship, 117; special cases of, 
120; State, 120. 

Civil case, 351. 

Civil Service Act, 173. 

Civil War, 113. 

Civil War debts, 111. 

Claims, Court of, 198,^02. 

Cleveland, his majority in New 
York, 150; withdraws treaty, 
268. 

Coahuila and Texas, 262. 

Coin, token, 123. 

Coining money, 122; power of 
government in, 123. 



Colonial governments, 4; similarity 
of, 5. 

Colonies, 1; classes of, 4; under 
England, 2. 

Colonists, French, 3; English, 4. 

Columbia, District of, 136, 199, 
200. 

Commerce, definition of, 114; pro- 
hibition of, 115; regulation of, 
113,143; Court, 203. 

Commerce and Labor, Department 
of, 189. 

Commercial intercourse, 360. 

Commission, Civil Service, 173. 

Commission, Electoral, 151. 

Commission, Interstate Com- 
merce, 114. 

Commission, United States Philip- 
pine, 273-375; President's in- 
structions to, 402-408. 

Committee of the whole, 91; of 
States, 41, 

Committees and legislation, 88; in 
the House, 88; in the Senate, 88. 

Committees of Congress, 89, 90; 
their treatment of bills, 93; 
national, 341, 

Common law, 16, 

Commons, resolutions in, 23, 

Communication between States, 
367. 

Community, rights of, 226. 

Compensation of congressmen, 82. 

Concord, 27. 

Concurrent resolutions, 98. 

Condemnation of land, 228. 

Confederation, 1643, population 
of, 21; aim of, 21. 

Confederation, Articles of, 28, 39; 
text of, 377-385. 

Conflict of authorities on naturali- 
zation, 118. 



INDEX 



417 



Congregational Church, 13, 16. 

Congress, 58; steps toward general, 
22; first call for, 22; in New 
York, 24; meetings of, 76, 77; 
separate meetings of houses of, 
77; adjournment of, 77; "execu- 
tive session," 78; attendance of, 
80; members of, 80; freedom of 
members of, 80; members' com- 
pensation, 82; members and 
officers of, 84; minor officers of 
87; powers of, 103; limitation on 
taxing-power of, 106; may nat- 
uralize aliens, 118; restriction 
on powers of, 142, 143; and the 
Territories, 259, 260. 

Congress at Albany, 23. 

Congress, Continental, 28, 47. 

Congress of 1774, 26. 

Congress of 1775, 27. 

Congress under Articles of Con- 
federation, 41, 42. 

Congressional caucus, 340. 

Congressional district, 68. 

Connecticut, popular government 
in, 19. 

Consent, age of, 328. 

Constable, 7. 

Constitution, recommended to 
States, 52; adopted, 53; on 
militia, 135; and treaties, 160, 
369; text of, 385-401. 

Constitution, English, 205. 

Constitutional Convention, 50, 51, 
147. 

Constitutionality of laws, 205; 
English position as to, 205. 

Constitutions, State, 44. 

Consuls, 174-177. 

Contested elections, 78, 79, 342. 

Contract of sale, 348; to serve, 
331. 



Contracts by minors, 325. 

Convention, Constitutional, 50. 

Convention, county, 335; order of 
business, 336; national, 339; 
State, 339; procedure of, 341. 

Cooley, on restrictions imposed by 
the Constitution, 219. 

Copyrights and patents, 126. 

Coroner, 8. 

Counterfeiting, 125. 

County, 7, 8, 13; in southern col- 
onies, 10; in Virginia, 10; in 
Maryland, 12; in New York, 15; 
in Pennsylvania, 15; govern- 
ment, 313-315; convention, 335. 

Court martial, 213. 

Court of Assistants, 17, 18. 

Courtesy, senatorial, 169. 

Courts, general, 11; quarterly, 11; 
county, 11, 12; inferior, 127; 
Federal, 195; circuit, 200; cir- 
cuit, of appeals, 201; commerce, 
203; customs appeals, 203. 

Crimes, classes of, 353. 

Criminal case, 353, 354. 

Criticism, 233. 

Deaf, dumb, and blind, 355. 

Debts and their payment, 111. 

Declaration of Independence, 29, 
31, 33, 34. 

Declaration of Paris, 131, 370. 

Declaration of rights and griev- 
ances, 24, 26, 218. 

Defectives, 355. 

Delegates, 41 ; from Territories, 80. 

Democracy, growth of, 301. 

Departments, executive, 177. 

Diplomatic agents, 174. 

Direct legislation through State 
Constitutions, 291. 

Direct taxes, 63. 



418 



INDEX 



Disputes, internal, 369. 
District Courts, 199. 
District of Columbia, 136. 
District- Attorney, United States, 

196. 
Due process of law, 240. 
Dutch, vessels, 24; in New York, 

311. 
Duties between nations, 359. 

Economic freedom, 24. 

Education, 325-327; compulsory, 
326. 

Election, of Representatives, 65; 
of Senators, 73, 75; judge of, 78; 
of President, 147, 148. 

Elections, contested, 78. 

Electors, presidential, 147-150. 

Embargo of 1807, 115; attitude of 
New England toward, 116; pur- 
pose of, 116; effect of, 116. 

Eminent domain, 227; in Terri- 
tories, 228, 229. 

Enabling Act, 261. 

Enacting a law, 96. 

English Cabinet, 85. 

English Parliament, 60. 

Equality, 236; of taxation, 106. 

Equalization, 298. 

Equity, 204; Grotius's definition 
of, 204. 

Excise, 111. 

Executive, collegiate, 146; in- 
fluence of Washington in fixing 
form of, 146; Hamilton's pro- 
posal, 156; executive depart- 
ments, 177; independence of, 
190. 

Exequator, 176. 

Expatriation, 119. 

Ex post facto laws, 221. 

Extra sessions, 67. 



Family, nature of, 329. 

Federal and State governments, 
281. 

Federal courts, 127; need of, 195; 
relation to State courts, 195; 
origin of, 196; scope of, 196; law 
applied by, 207. 

Felony, 353. 

Feudalism, 14; in New York, 312. 

Filibustering, 99. 

Florida, 163. 

Foreign affairs, 179. 

Form of English government re- 
produced, 5. 

Franklin, 27; his Articles of Con- 
federation, 40. 

Freedom, religious, 19; economic, 
24. 

Freemen, assembly of, 6; quali- 
fications, of, 15, 17. 

French and Indians, 22. 

French Revolution, 221. 

Gadsden Treaty, 164. 

Game, 344. 

General Sessions, Court of, 8. 

Gerrymander, 68. 

Gifts and bequests, 349. 

Government, under Articles of 
Confederation, 41; taxation of 
means of, 107; of a Territory, 
251; local, in New England, 308; 
and party, 337; land, 343. 

Governments of Colonies, 5. 

Governor, and assembly, 5; of 
States, 46; duties of, 299, 300. 

Grand Jury, 303. 

Guadalupe-Hidalgo,Treaty of, 164. 

Guilds, 286. 

Habeas Corpus Act, 16, 143, 216, 
218; suspension of, 224, 225; 



INDEX 



419 



Bates on suspension of, 225; sus- 
pended by Lincoln, 225; pre- 
sumed in America, 225. 

Hamilton on Executive power,156. 

Harrison submits Hawaiian treaty, 
268. 

Hawaii, 98; annexed, 164, 268; 
government of, 269; made a 
Territory, 269, 270; judiciary in, 
270; district court in, 272. 

Hayes elected, 152. 

House, 60; committees, 90; com- 
mittee on rules, 92; and treaties, 
159; on Jay's treaty, 162; in im- 
peachment, 208. 

Humphreys impeached, 212. 

Hundred, 10; in Maryland, 11, 12. 

Hungary, independence of, 367. 

Impeachment, 72; cases of, 208, 

210-213. 
Implied powers, 138; attitude of 

parties toward, 139. 
Independence, 29; project of, 30; 

Declaration of, 33; of Executive, 

191; of judges, 206; national, 

360. 
Indians, 2, 115. 

Individual control of property, 331. 
Insane, the, 355. 
Interior, Department of, 187. 
Interstate Commerce Commission, 

114. 

Jay's treaty, 161; terms of, 162; 

Washington's view of, 162. 
Jefferson, 150; on townships, 9. 
Jews not voters, 16. 
Johnson, President, impeached, 

212. 
Joint resolution admitting Texas, 

263. 



Journal, 93. 

Judges, independent, 206; tenure 

of, 301. 
Judges of Supreme Court, 127; 

number of, may be increased, 

127. 
Judgment, 352. 
Judiciary of county, 11; of State, 

300. 
Jury, trial by, 16, 18, 304; Grand, 

303; of one's peers, 306. 
Justice, Department of, 185. 
Justice of the peace, 8. 
Justices of the Supreme Court, 

appointment of, 198. 

Kentucky Resolutions, 141. 
King, supremacy of, 3; Spanish, 3; 
and land, 218. 

Land, acquiring government, 343. 

Lands, northwestern, 39. 

Law, parliamentary, 100; com- 
mon, 216; of the land, 240; 
definition of, 358; international, 
358. 

Law-making, by States, 295. 

Laws, all repealable, 143; ex post 
facto, 221. 

Lease, 347. 

Legal tender, 124. 

Legal Tender Act, 206. 

Legislative power, 58; not dele- 
gated, 142. 

Legislatures, in colonies, 5, 45, 
46; bicameral, 58; of States, 
294. 

Letters of marque, 130. 

Lexington and Concord, 27. 

Liberty, civil, 16, 238; nature 
of, 237; political, 238; religious, 
239. 



420 



INDEX 



Local government in southern 
colonies, 10; in middle colonies, 
11, 13; in the West, 315. 

Louisiana, 10, 163, 258. 

McKinley and Hawaii, 268. 

Magna Charta, 216. 

Majority, popular, 151. 

Manila, government of, 297. 

Manufactures, 13; restrictions on, 
25. 

Marque, letters of, 130. 

Marriage, 328. 

Marshal, United States, 196, 
219. 

Massachusetts as a royal province, 
19. 

Massachusetts Bay Company, 18. 

Master and servant, 330. 

Members of Congress, 80; of Con- 
tinental Congress, 29. 

Merit system, 171. 

Messages of President, 165; general 
and special, 166; special, 167. 

Mexico, 2. 

Middle colonies, 13. 

Mileage, 83; corruption in, 84. 

Military Academy, 133. 

Military organization of county, 9. 

Militia, relation to Federal Gov- 
ernment, 134; relation to State, 
135; in Federal service, 136; in 
New England, 311. 

Ministers, English, 94, 174. 

Minor, the, 324. 

Mississippi, question of, 363. 

Missouri Territory, 258. 

Monarchy vs. republicanism, 361. 

Money, borrowing, 112; coining, 
122. 

Monroe Doctrine, 361. 

Mortgage and foreclosure, 345. 



Municipal government, in Philip- 
pine Islands, 276. 

Nation, denned, 1; birth of, 35; 
new, 36; name of, 40. 

National, convention, 339, 341; 
territory, 362. 

Naturalization, 118; conditions of, 
119. 

Nature and liberty, 237. 

Naval Academy, 133. 

Navigation, 114; laws, 24. 

Navy, Department of, 184. 

Neutrals, in war time, 369; moral 
force of, 370. 

New Amsterdam, 14. 

New England, local government 
in, 6; Confederacy of 1643, 21; 
towns, 308; influence of in the 
West, 315. 

New Englanders, 312. 

New Mexico, 261. 

New Netherland Company, 14. 

New Netherlands, government of, 
19. 

New York, beginnings of, 14; Con- 
gress in, 24. 

Nobility, title of, 144. 

Non-intercourse, 26. 

Non-interference, 360. 

Northwest, Ordinance for the 
Government of the, 371-377. 

Northwestern Territory, 249-254. 

Notes, treasury, 123; as legal ten- 
der, 124. 

Nullification, 142 

Obligations, moral and legal, 351. . 
Office, removals from, 170. 
Offices, and members of Congress, 

84; and appointment, 167. 
Oglethorpe's rule, 20. 



INDEX 



421 



Opposition to independence, 30, 

31. 
Ordinance of 1787, 251, 257; text 

of, 371. 
Overseers of poor, 7. 

Panama Canal, 113. 

Paper money in Civil War, 206. 

Parental duty and authority, 330. 

Paris, Declaration of, 370. 

Parish, 10; in Maryland, 12; in 
Virginia, 312. 

Parliament, American colonists' 
view of, 4; prestige of, 4. 

Parliamentary law, 100. 

Parliamentary responsibility, 85. 

Party, 31; government, 192; citizen 
and, 333; choice of, 334; com- 
mittees of, 335; and the govern- 
ment, 337; organization in State, 
338. 

Patents and copyrights, 126. 

Patroons, 14, 312. 

Payments, 111. 

Peck impeached, 212. 

Peers, judgment of one's, 305. 

Penn, William, 15. 

Pennsylvania, government in, 19. 

Pensions and bounties, 112. 

People, rights of, 16; and govern- 
ment, 282. 

Period of Representatives, 66. 

Petition, of Right, 216, 217, 230. 

Philadelphia meeting, 50. 

Philippine Assembly, 275. 

Philippine Commission, instruc- 
tions to, 402-408. 

Philippines, annexed, 165; govern- 
ment of, 272; act to provide 
government for, 409. 

Pickering impeached, 211. 

Piracy, 127. 



Pirates, trial of, 128. 

Plantations, 13. 

Popular government, in Connecti- 
cut, 19. 

Population on Atlantic coast, 2. 

Porto Rico, annexed, 165; govern- 
ment of, 271; Organic Act, 271, 
272; executive council of, 272. 

Ports of neutrals, 370. 

Postmasters, classes of, 187. 

Post-office Department, 186. 

Post-offices and post roads, 125. 

Powers, delegated, 40; reserved, 
40, 103; implied, 104; to tax, 
105; of Congress, 138, 142; of 
President, 156-158; separation 
of, 178; of United States Philip- 
pine Commission, 274. 

Preemption laws, 343. 

President, in legislation, 58; elec- 
tion of, 147; elected by House, 
150; his compensation, 153; in 
treaty-making, 158; his mes- 
sages to Congress, 165; and 
Supreme Court, 207. 

Presidential, candidates, 151; term, 
154 ; succession, 155 ; office, 
model for, 156. 

Press, freedom of, 231. 

Previous question, 99. 

Privateering, 130. 

Propevty, qualification, 16, 46; 
of minor, 324; distribution of, 
330; control of, 331; private, de- 
stroyed for public good, 332; 
forms of title to, 344; real, 344; 
separate and community, 344; 
methods of transferring, 347. 
Protection, governmental, 350. 
Provincial Government Act, 278. 
Provincial government in Philip- 
pine Islands, 278. 



422 



INDEX 



Public, school, 9; affairs, discus- 
sion of, 233; charity, 354. 
Punishment of pirates, 128. 

Qualifications, for freeman, 15; 
for voting, 16; property, 46; for 
Representative, 64; for Presi- 
dent, 153. 

Quarter Sessions, 8. 

Quorum, 81. 

Randolph on executive, 146. 

Real property, 344. 

Rebellion in Philippines, 273. 

Record, Congressional, 93. 

Regulation of commerce, 113. 

Religious, freedom, 19; liberty, 
239. 

Removals from office, 170. 

Representation, 59; of States, 
53. 

Representatives, House of, 60; 
number and apportionment of, 
61; qualifications of, 64; of 
States in Senate, 71. 

Reputation of other states, 367. 

Resolutions, joint and concurrent, 
98. 

Responsibility, ministerial, 85. 

Restrictions, on economic freedom, 
24; on manufactures, 25; on 
Congress, 143; on State legis- 
latures, 295. 

Revenues, 43; use of, 108; Federal, 
110. 

Reviews, 233. 

Revolution, "Right" of, 32; dura- 
tion of American, 36. 

Revolutionary action, 28; govern- 
ment, 29. 

Rider, 97. 

"Right" of Revolution, 32. 



Right to vote, 234-236. 

Rights, of people, 16; political, 117; 

of man, 221; of community, 226, 

227. 
Roads, post, 125. 
Royal province, 19. 
Rules, House Committee on, 92; 

suspension of, 98. 
Russia ceded Alaska, 164. 

Salary of President, 153. 

Sale, contract of, 348. 

San Lorenze el Real, Treaty of, 
363. 

Schools and their organization, 
327. 

Secession, 32. 

Secretary, of State, 180; of War, 
273. 

Sedition Laws, 140. 

Selectmen, 7, 309. 

Self-government, 9, 21. 

Self-preservation, 360. 

Senate, 7; in State, 46; special pur- 
poses of, 71; corruption in, 73; 
president of, 83; committees, 89; 
in treaty-making, 158; attitude 
toward presidential appoint- 
ments, 168. 

Senators, number of, 72; classifica- 
tion of, 72; qualifications of, 73; 
election of, 73; project for popu- 
lar election of, 75. 

Servant, 330; hired, 331; tenure of 
position, 331. 

Service, civil, 173. 

Sessions of Congress, 76, 77. 

Sheriff, 6, 7, 9, 11, 12. 

Ship-building in New England, 
25. 

Shire, in England, 8; in Virginia, 
10; officers of, 10. 



INDEX 



423 



Slave, as member of family, 330; 
under Louisiana civil code, 244. 

Slavery, and representation, 63, 
244; legislation on, 245-247; 
and Texas, 265. 

Slaves, importation of, 143. 

Soldiers, quartering of, 240. 

South America, 2. 

Southern colonies, 10. 

Sovereign, new, in colonies, 36. 

Spaniards and Indians, 2. 

Spanish and English colonial sys- 
tems contrasted, 2. 

Speaker, 86, 87; salary of, S3. 

Speech, freedom of, 231. 

"Spoils system," 171. 

Stamp tax, 23. 

State, after the Revolution, 44; 
governments reformed, 44; citi- 
zenship, 120; Department of, 
./79; courts, power of, 196; ad- 
mission of a, 260; from Terri- 
tory, 261; its decline in impor- 
tance, 282; its functions, 282- 
285; restrictions on the power of 
the, 283; constitution, formation 
of, 287; constitutions, 286-290, 
292; legislatures, 294; taxation, 
297. 

States, sovereign, equality of, 359. 

Statute and treaty, 161. 

Steering committee, 89. 

Strict construction party, 139. 

Suffrage, 16. 

Supremacy of King, 3. 

Supreme Court, 127; decisions of, 
197, 199; original jurisdiction 
of, 198; appellate jurisdiction of, 
198; appeal to, from Philippines, 
199, 275; sessions of, 199; of the 
Philippine Islands, 275. 

Swedish Parliament, 60. 



Tax, direct, 143. 

Taxation, in colonies, 20, 23, 104; 
equality and uniformity of, 106; 
of governmental means, 107; 
purposes of, 108. 

Taxes, 21; in colonies, 5; county, 
11; direct, 63, 105, 109; classes 
of, 105; on imports, 108, 110; 
purposes of, 109; Federal, 109. 

Tenure-of-office Bill, 170. 

Term of President, 154. 

Territorial delegates, 80. 

Territories, status of, 254-257; or- 
ganization of, 257; institutions 
of, 259; power of Congress over, 
259; changed into States, 261. 

Territory, national, 362. 

Texas, 98; annexed, 164; history 
of, 262; made a State, 263. 

Tie vote, 100. 

Tilden, presidential candidate, 
152. 

Timber Culture Act, 343. 

Token coin, 123. 

Toleration, religious, 20. 

Town, meeting, 6, 7; affairs, 7; 
in New York, 15; government, 
308, 309; phases of history of 
the, 310. 

Township, 9; in New England, 6; 
divisions of the, 317. 

Trade, 40; English and Spanish, 
2; restricted to England, 25. 

Trading companies, 286. 

"Trained bands," 12. 

Treason, 137, 353; punishment for, 
137. 

Treasury, notes, 123; Department 
of, 180; officers of, 181. 

Treaties, 367; and the Constitu- 
tion, 160; and acts of Congress, 
161; of annexation, 163-165. 



424 



INDEX 



Treaty, of peace, 17S3, 36; of Paris, 
1856, 131; Gadsden, 164; of Gua- 
dalupe-Hidalgo, 164; of Paris, 
272. 

Treaty-making power, 158, 339. 

Trial by jury, 18,24. 

Troops against French and In- 
dians, 22. 

Truths, self-evident, in Declara- 
tion of Independence, 34. 

Union, 21, 28, 31. 

Urban and country population in 

United States, 318, note. 
Utterances, privileged, 232; with 

conditional privilege, 233. 

Vacancies in representation, 67. 

Vestry, 313. 

Veto, presidential, 191; right to, 
234. 

Vice-President, 86, 100; election 
of, 148, 155. 

Virginia, government of, 18; Res- 
olutions, 141. 

Voting, privilege of, 15; in New 
England colonies, 15; in Con- 
tinental Congress, 29; under 
Articles of Confederation, 45; 



in Congress, 98; in Territories, 
259. 

War, losses, 112; declaration of, by 
Congress, 128; without formal 
declaration, 129; with Mexico, 
129, 264; in the Philippines, 129; 
with Spain, 129; in China, 129; 
of 1812, 129; Department of, 
182. 

Warrant, 242; general, 243. 

Washington, 28; in the Conven- 
tion of 1787, 51; President, 150; 
on Jay's treaty, 162. 

Water rights, 344. 

Weakness, of Articles of Confeder- 
ation, 43; of general govern- 
ment, 47, 48, 

Western, lands ceded, 249-252; 
States, local government in, 315, 
316. 

West India Company, 14, 311. 

Whisky Insurrection, 226. 

Wilkes's case, 243. 

Wilkinson, General, 226. 

Witnesses, 352. 

Woman suffrage, 333. 

Yeas and nays, 98. 



(9) 



THE GOVERNMENT OF MINNESOTA 



BY 



WILLIAM W. FOLWELL, LL.D., 

EMEEITUS PROFESSOR OF POLITICAL SCIENCE, 
UNIVERSITY OF MINNESOTA 



CHAPTEE I 



THE STATE GOVERNMENT 



I. The State Constitution 

The government of Minnesota rests on a state constitution 
framed by a constitutional convention, and adopted by a vote 
of the electors, October 13, 1857. The whole of it should be 
read and parts of it studied with care. 

The most important of its fifteen articles is doubtless, the 
first, entitled Bill of Rights. It is a summary of certain im- 
memorial rights which belong, or ought to belong, to every 
citizen of a free state. The state government may not abolish 
or diminish any of these rights. Prominent among them are : 
personal liberty, freedom of speech and of the press, trial by 
jury, private property, and religious liberty. 

The second article gives to the State the name, Minnesota, 
by which she is known in all her transactions and records. The 
same article determines the boundaries of the State. The 
laws of Minnesota have not the least force outside the lines de- 
scribed, and the laws of other states have no force inside 
them; but the laws of the United States are in full force in 
Minnesota as in all other states. 

Pour articles are devoted to the organization, powers and 
procedure of the three great departments of government ; leg- 
islative, executive and judicial. Other articles establish the 

1 



2 THE GOVERNMENT OF MINNESOTA 

elective franchise, provide for public schools, confer the power 
of taxation, and authorize the organization of towns and 
counties. 

A very important article of any constitution is that which 
provides for its own amendment or revision. The Minnesota 
legislature may, whenever it deems necessary, propose amend- 
ments to the constitution. The secretary of state is required 
by law to publish and circulate through county auditors a 
statement prepared by the attorney-general, showing the pur- 
pose and effect of any amendment proposed. A copy of this 
statement must be posted at every polling place in the State. 
If a majority of all the electors voting at the general election 
shall vote for and ratify the amendment, it becomes part 
of the constitution. Many amendments have been so made. 

A revision of the whole constitution can only be made by 
a convention consisting of as many members as the state 
House of Bepresentatives. Two thirds of the legislature may 
recommend, at any time, the electors of the state to vote 
for or against a convention. If a majority of all the electors 
voting favor a convention, it becomes the duty of -the legisla- 
ture to provide by law at the next session for calling the 
same. The draft framed by the convention must be submitted 
to the electors and, if it be ratified by a majority of all voting 
at the election, it becomes a new constitution. No such re- 
vision has yet been made. 

II. The Legislative Department 
1. Composition 

The legislature consists of a senate and a house of repre- 
sentatives, the members of which are chosen by the electors of 
districts, established in the manner following: the respective 
numbers of senators and representatives are fixed by law; the 
State is then divided, also by law, into as many senatorial dis- 
tricts as there are senators, in such a way as to give all districts 
an equal population, as near as may be, according to the last 
state or national census; one, two, or more representatives 
are apportioned to each senatorial district, according to popu- 



THE STATE GOVERNMENT 3 

lation. At the present time, there are G3 senators and 120 
representatives. 

Any qualified elector is eligible to either house, provided, 
he is not holding any office, state or national, except that of 
postmaster. The term of office of senators is four years; that 
of representatives, two years. The salary of a senator or rep- 
resentative is $500. All members and officers are required to 
take an oath to support the constitutions of the state and 
nation before entering upon their duties. 

The legislature is required to meet in regular session on 
the first Tuesday after the first Monday in January of each 
odd number }^ear. No session may last more than ninety leg- 
islative days. 

2. Powers 

Because state legislatures generally have authority to enact 
bills, orders and resolutions of every nature, but few powers 
are specifically conferred by the Minnesota constitution. 
Each house is given the right to decide whether its members 
have been duly elected, to elect its own officers (except the 
president of the senate), to punish members and others for 
disorderly conduct, and to make rules for its own procedure. 

The house of representatives has the sole power of impeach- 
ing the governor, secretary of state, auditor, attorney-general, 
and the judges of the supreme and district courts ; that is, of 
accusing any of these high officers of corrupt conduct in office, 
or of crimes or misdemeanors. The senate, sworn as a court, 
tries all impeachments. 

The legislature is authorized to provide by law for the 
removal of " inferior " state officers for neglect of or mal- 
performance of duty. The two houses in joint convention 
elect senators of the United States, in the manner provided by 
act of congress. 

The restrictions on the legislative bodies are numerous and 
extensive. It will be understood, of course, by students of 
this book that no state may do any of the things forbidden 
to states by the constitution of the United States; also, that 
all state laws in conflict with national treaties and laws of 



4 THE GOVERNMENT OF MINNESOTA 

congress are void. The state constitution specifically forbids 
the Minnesota legislature to do any of the following things : 

To grant divorces, 
To authorize lotteries, 

To appropriate money for sectarian schools, 
To reduce the salaries of judges while in office, 
To surrender, suspend or contract away the power of taxa- 
tion, 

To enact any special law where a general law can apply, 
To enact any special law in regard to a long list of matters 
stated in amending section 33 of article -4. This provision, 
adopted in 1892, put an end to much partial, ill-advised, and 
mischievous legislation. 

The suspensive veto power vested in the governor has a 
moderating effect on the legislative bodies and may nullify 
their action. 

An amendment to the constitution adopted in 1898, author- 
izing cities and villages to frame charters for their own gov- 
ernment, and to amend the same at pleasure, has greatly cur- 
tailed the power of the legislature to impose governments on 
those municipalities. The amendment, forming section 36 of 
article 4, has been called the Home Rule amendment. The 
general law for the organization of cities does not operate in 
cities which may have adopted Home Rule charters. 

3. Peoceduee 

While the constitution authorizes each house of the legis- 
lature to make rules for its own procedure, it prescribes, at 
the same time, a number of rules superior to any the houses 
may make. They are such as experience has proved desirable 
or necessary, and they operate as restrictions on legislative 
power. 

All sessions must be open to the public, except in cases re- 
quiring secrecy. No proper legislative business can be done in 
either house unless a majority of the members are present. 
Such number is called a quorum. Each house must keep a 



THE STATE GOVERNMENT 5 

journal of its jnoceedings, and have it published. All " yea 
and nay " votes must be recorded in the journals. 

Bills for raising revenue, principally tax bills, must origi- 
nate in the lower house. All other bills may be freely intro- 
duced in either house; but no bill may be j>resented during 
the last twenty days of a session, unless the attention of the 
legislature is called to some important matter of general in- 
terest by a special message from the governor. Every bill 
must relate to one subject only, and that must be expressed in 
its title. 

Every bill must be read on three different days in each 
separate house ; but, in case of urgency, this rule may be dis- 
pensed with by a two-thirds vote. Nevertheless no bill can 
be passed by either house, until it has been read twice at 
length. No bill can be passed on the last day of a session. A 
majority vote of all the members elected to each house is 
necessary to the passage of all bills, except those creating state 
debts, which require a two 7 thirds vote. After the passage of 
any bill it must be carefully " enrolled," signed by the pre- ^ 
siding officers of both houses, and laid before the governor. 

The number of bills introduced at each session is very great ; 
to examine them, and to perfect and harmonize those found 
meritorious, is the work of standing committees in both 
houses. At this time there are 51 senate and 62 house commit- 
tees. A bill not " favorably reported " by a standing commit- 
tee will rarely be passed. The privilege of appointing these 
committees, accorded by the house of representatives to the 
speaker, enables him to influence legislation. 

Immediately after the close of any legislative session, all 
its acts, orders and resolutions are published in the principal 
newspapers of the State, and not long after in a book called 
the " Session Laws," of such a year. At somewhat long and 
irregular intervals a commission of learned lawyers is ap- 
pointed by the legislature to prej^are a revision of all the laws 
previously enacted. They reject those which have become ob- 
solete or superfluous, and carefully arrange and codify all that 
should remain in effect. The report of the commission when 
formally adopted by the legislature, supersedes the former 



6 THE GOVERNMENT OF MINNESOTA 

code. The last revision was in 1905 and is entitled " Revised 
Laws of Minnesota, 1905." A copy should be easily accessible 
to the student, and he should form the habit of resorting to it. 
Soon after the close of each regular session of the legisla- 
ture, the secretary of state publishes a volume entitled " The 
Legislative Manual." Because it has been invariably bound 
in blue cloth it is commonly called The Blue Boole. It 
contains : 

( 1 ) All the " organic laws " with which Minnesota is or 

has been concerned; 

(2) A brief history of the State, with an account of its 

various institutions; 

(3) A roster of all the state and county officers, and much 

political and financial statistics. Every school dis- 
trict of the state is entitled to one copy. The stu- 
dent of Minnesota government should find much to 
profit and interest him in The Blue Boole. 



III. The Executive Department 
1. The Executive Oeficers 

The governor is the chief executive officer and head of the 
state. He is elected for the term of two years and until his 
successor is elected and qualified. He must have reached the 
age of twenty- five years, must be a citizen of the United States, 
and must have actually resided in the state during the year 
preceding his election. 

His all-comprehending duty is to see that the laws are 
faithfully executed. For this purpose, he is authorized to 
call out the military and naval forces of the state. The rela- 
tions of the governor to the legislature are close. He is re- 
quired by the constitution to inform that body at each session 
of " the state and condition of the country." It is cus- 
tomary for him to recommend to their consideration such 
measures as he deems necessary or desirable. The messages 
of the governors have all been published in volumes called 
" Executive Documents," which are important for historians. 



THE STATE GOVERNMENT 7 

Because the governor is required to sign all bills which meet 
his approval, before they become laws, he is virtually a co- 
operator in law-making. Whenever, in his judgment, a bill 
presented to him ought not to become a law, it is his duty to 
return it to the house in which it was originated, with a state- 
ment of his objections. The constitution requires that body 
to reconsider it immediately and take a new vote on its pas- 
sage. If less than two-thirds of the house vote for passage, 
the bill is " dead." If there is a two-thirds vote in favor of 
passage, the bill is sent to the other house, where similar 
action is taken. If both houses shall have passed the bill by 
two-thirds votes, it becomes a law, notwithstanding the objec- 
tions of the governor. The governor of Minnesota holds not 
only the veto power over all bills as wholes, but he has the 
unusual power to disapprove of particular items in appropri- 
ation bills, while approving the remaining portions. 

The governor has a very extensive appointing power to be 
exercised with the advice and consent of the senate. The 
constitution names only a state librarian and notaries public 
to be so appointed, but it adds " and such other offices as may 
be provided by law." Many have been so provided. In 
general, the governor fills all vacancies in state and district 
offices for unexpired terms or until the next election, without 
senatorial confirmation. 

The constitution includes under the executive department, 
along with the governor, a lieutenant-governor, secretary of 
state, auditor, treasurer, and attorney-general. All of them 
are elected for two-year terms, except the auditor, whose term 
is four years. Their salaries are fixed by law. 

The lieutenant-governor has no executive duties unless a 
vacancy occurs in the office of governor, in which event he is 
governor during the vacancy. He is ex-officio president of the 
senate and is entitled to double the pay of a senator. He has 
no vote except in case of a tie. He has been authorized by 
the senate to appoint its standing committees. The constitu- 
tion requires the senate to elect a president pro tempore 
before the close of each session, who becomes lieutenant- 
governor in case of a vacancy in that office. It has happened 



8 THE GOVERNMENT OF MINNESOTA 

once in the history of the State that a senator so elected be- 
came, not only lieutenant-governor, but also governor. 

The duties of the secretary of state, auditor, treasurer and 
attorney-general are indicated by their titles. The treasurer 
receives all moneys coming to the state, and can pay them out 
only as authorized by law. The auditor is the bookkeeper of 
the state, and it is his particular business to hold a check on 
all the transactions of the treasurer. The auditor also has 
charge of the public lands of the state. 

The attorney-general is the law officer of the state, of all 
state officers, and of all boards and commissions created by 
law. He advises the governor and heads of departments in 
matters relating to their official duties and, when required by 
either house of the legislature, gives his opinion in writing on 
questions of law. He is charged especially with the prosecu- 
tion of corporations for violating laws. He is required to 
advise town, village, city, and county attorneys on questions 
of public importance. The duties of the attorney-general 
have so multiplied that he is allowed by law the aid of three 
expert assistants. 

2. Administration 

A moment's reflection will reveal the fact that these six 
executive officers named in the constitution, residing at the 
capitol, could never attend to the multifarious affairs relating 
to the welfare of the people spread over the whole territory of 
the state : to such matters as roads, schools, elections, taxes, 
public health, railroads, forests, fish and game, food inspec- 
tion, the poor, liquor selling, the militia, prisons, asylums, 
public buildings and others. The care and management of 
such affairs belong to what is called administration. 

One part of administration is committed to individual offi- 
cers authorized by law and mostly appointed by the governor 
and the senate. At the head of these in point of importance, 
stands the state superintendent of public instruction. The 
commissioner of labor, the insurance commissioner, and the 
dairy and food commissioner exercise important duties sug- 
gested by their titles. An office of very high importance is 



THE STATE GOVERNMENT 9 

that of public examiner, whose duty is to supervise the books 
and accounts of all state institutions, of all state and county 
auditors and treasurers, and of all financial corporations, and 
to report any failure in duty discovered. 

Other branches of administration are committed to boards 
and commissions of which there are forty or more. A few 
of the most important may be mentioned here. 

(1) The Minnesota Tax Commission composed of three 
electors appointed by the governor and senate for six-year 
terms. 

(2) The State Board of Control consisting of three electors 
appointed in the same manner for six years. This board has 
full control and management of all the penal and charitable 
institutions of the state and the right to supervise and regu- 
late all private institutions of charity. 

(3) Another very important board is The State Board 
of Bailroad and Warehouse Commissioners. It consists of 
three members chosen by the electors for four-year terms. 
This commission has the duty of inquiring, either on its own 
motion or on complaint of aggrieved parties, into the reason- 
ableness of any railroad or elevator, " rates, fares, charges or 
classifications " ; and if it finds any of them unequal or un- 
reasonable, it has the right to establish a tariff which shall be 
equal and reasonable. Such tariff must be immediately put 
into effect ; but the parties affected have the right to appeal to 
the courts. Very heavy fines are imposed for wilful disobe- 
dience of the orders of the commission. This commission also 
appoints the chief inspector of grain for the state, and regu- 
lates the management of all public grain elevators. 

The members of these three boards devote their whole time 
to their duties and receive salaries fixed by law, while the 
numerous other state boards or commissions are generally 
appointed by the governor and senate for terms varying from 
two to six years and the members serve without compensa- 
tion, but have their necessary expenses paid while engaged 
in their duties. As examples, may be mentioned : 

The Minnesota State Board of Health and Vital Statistics, 
The Minnesota Public Library Commission, 



10 THE GOVERNMENT OF MINNESOTA 

The Board of Visitors for Public Institutions, 
The State Game and Fish Commission. 

Still other branches of administration are committed to 
the local authorities of towns, villages, cities and counties. 

IV. The Judiciary 

The state constitution vests the judicial power of the state 
in certain courts by name, and in others which the legislature 
may by a two-thirds vote establish. There are three kinds of 
courts for the arbitration of controversies between private par- 
ties, and the trial of persons accused of crime. 

1. The Coukt or the Justice of the Peace 

Beginning with the lowest of the series, we have The Court 
of the Justice of the Peace. Justices of the peace are elected 
in every town of the state, and in many cities and villages, for 
two years. Their jurisdiction extends throughout their re- 
spective counties. They can try civil cases in which the 
amount in controversy does not exceed $100, and criminal 
cases' where the punishment fixed by law does not exceed a 
fine of $100, or imprisonment in a jail for more than three 
months. Either party to a civil action in a justice's court may 
have it tried by a jury by paying one clay's jury fees in ad- 
vance. The jury will consist of twelve men unless the par- 
ties agree on six. In criminal actions the accused person is 
entitled to a jury trial, but he may, if he prefers, waive a 
jury and be tried by the justice alone. Parties not satisfied 
with the judgment or sentence of a justice may appeal to the 
district court. The justice of the peace derives his ancient 
title from the fact that he is specially charged with " keeping 
the peace." He has authority to arrest persons breaking the 
peace, and either send them to jail, or bail thorn. He can put 
a person threatening to commit an offense under bonds to 
keep the peace. 

The law authorizes cities and villages having 2,000 in- 
habitants or over to have municipal courts instead of jus- 
tices' courts. The judges are elected for four years. They 



THE STATE GOVERNMENT 11 

have all the powers and jurisdiction of justices of the peace 
and may try civil cases involving $500. 



2. Disteict Courts 

Next above the justices' and municipal courts come the dis- 
trict courts. These are the principal tribunals for litigation. 
They have original jurisdiction in all cases, civil and criminal, 
and appellate jurisdiction in cases brought up from justices', 
municipal and probate courts. 

The legislature from time to time divides the state into judi- 
cial districts and determines the number of judges each shall 
have. There are nineteen judicial districts at present. The 
judges are elected for four-year terms, and receive salaries 
fixed by law. When a judicial district embraces more than 
one county, the district court sits in each county at a time 
fixed by the judges and published by the secretary of state. In 
each county there is elected a clerk of the district court for 
a term of four years. He is required to keep his office at the 
county seat. His principal duty is to keep the records of the 
court. He receives a salary fixed by law and also fees for par- 
ticular services. Every district judge has the right to appoint 
a stenographer and secretary. In old times all the proceed- 
ings of trials had to be written out in longhand, which was 
one cause of the proverbial law's delay. 

Trials in the district court are by judge and jury. It is 
the province of the judge to decide all questions of law ; issues 
of fact are decided by the jury. A party, however, to a civil 
action, may, with the permission of the judge, waive a jury 
trial. This is frequently done. The jury in a district court, 
often called a petit jury, is composed of twelve electors- sworn 
to render a true and unanimous verdict according to law and 
the evidence given them in court. In 1890, an amendment to 
the state constitution was adopted authorizing the legislature 
to declare an agreement of five-sixths of any jury in a civil 
case to be a sufficient verdict. The legislature has taken no 
action as yet. 

Besides the petit or trial jury of the district court, Minne- 



12 THE GOVERNMENT OF MINNESOTA 

sota retains in criminal cases the ancient grand jury system. 
The grand jury consists of twenty-three electors selected and 
summoned in the same way as trial jurors. Sixteen must be 
present to form a quorum, and twelve must agree to make any 
action valid. It is the principal duty of the grand jury to in- 
quire into all public offenses committed in the county and to 
find " indictments " against all persons whom they believe to 
have committed such offenses. They have the aid of the 
county attorney in this duty. They are also charged with in- 
quiring : 

(1) Into the condition of the prisoners in jail. 

(2) Into the condition and management of the prisons of 
the county. 

(3) Into the misconduct of all public officers of the county. 
All deliberations are in secret. 

3. The Supkeme Court 

Judges and juries are liable to error, and even to prejudice. 
The law is not always certain, and may be void. Civilized 
nations, therefore, provide in their judiciary systems for the 
reopening of trials and the rehearing of aggrieved litigants, 
in high " appellate " courts. The supreme court of Minnesota 
is such a court. It consists of a chief justice and four asso- 
ciate justices chosen by the electors of the state for six years. 
They receive salaries fixed by law, and the state constitution 
forbids the legislature to reduce the salary of any supreme 
or district judge while in office. The student may find the 
reason. 

This court sits in the state capitol and holds two general 
terms in each year beginning in April and October. It has 
no jury. Cases come before it on appeal from the " inferior 
courts," and it has power to affirm, modify, or reverse their 
action in any case or to order a new trial. It has authority to 
declare any state statute found to be in conflict with the state 
or national constitutions to be no law. District courts have 
this power also, but subject to appeal to the supreme court. 

Both the supreme and district courts have power, in addi- 



THE STATE GOVERNMENT 13 

tion to that of deciding cases, to issue certain orders in fur- 
therance of justice, when petitioned for by parties substan- 
tially interested. Such orders are called " writs " and the 
law names six of the most important. They are writs of in- 
junction, ne exeat, certiorari, habeas corpus, mandamus, and 
quo warranto. The student will look up these words in a 
large dictionary. 

One of these writs is of such importance to every person 
that it should be well understood, namely : the writ of habeas 
corpus. The two Latin words mean, " bring the person " 
(named in the writing into court). It is the privilege of any 
person in the state who believes himself to be unlawfully re- 
strained of his liberty, to apply for this writ, to be brought 
into court, to have his case inquired into immediately, and to 
be set at liberty unless just cause is found for his detention. 
A very heavy penalty awaits public officers who neglect to act 
promptly on such application. The " privilege of the writ 
of habeas corpus " is one of the effective safeguards of per- 
sonal liberty. It can be suspended only in time of war or 
public danger. 

The clerk of the supreme court is chosen by the electors of 
the state for a term of four years. The judges are required 
to appoint a reporter to edit and publish their decisions from 
year to year. The 100 and more volumes so published are 
known as " Minnesota Eeports." The student may guess 
what this short citation means : " 29 Minn. 280." The de- 
cisions of district judges are not printed and they need not 
be in writing. 

4. The Board of Pardons 

We have learned how the supreme court may rectify mis- 
takes made by the trial courts, in criminal as well as in civil 
cases. But, even after this high court has reviewed cases, 
there may be question whether the ends of justice have been 
met. The constitution and laws therefore mercifully pro- 
vide, in criminal cases, for the mitigation and even the com- 
plete remission of punishment. This is effected in Minnesota 
by the board of pardons composed of the governor, the attor- 



14 THE GOVERNMENT OF MINNESOTA 

ney-general, and the chief justice of the supreme court. This 
board holds regular meetings four times a year in the capitol, 
and acts according to regulations fixed by law. A unanimous 
vote of the members is necessary to the pardon or commuta- 
tion of a sentence. 

5. The Probate Court 

There is still another court established by the constitution 
in every county, of a different character from those already 
mentioned — the prolate court. The judge is chosen by the 
electors of the county for a two-year term. He appoints his 
own clerk. He has jurisdiction over the estates of deceased 
persons and persons under guardianship. Where wills are 
left, they must be proved (or probated) in this court; where 
there is no will, the probate judge appoints administrators to 
care for and dispose of property according to law. When it 
is observed that substantially all the private property in the 
county passes through the probate court in the course of a 
generation, the importance of this court is apparent. There 
is no jury in the probate court, but the judge listens to hear- 
ings on disputed matters and decides them subject to appeal 
to the district court. 

V. The Electorate 

Minnesota being a republic, her government originated 
with and is constantly maintained by her citizens. Not all 
citizens, however, are or can be, actively engaged in public 
affairs. The elective franchise, that is, the privilege of voting, 
is reposed by the constitution in a selected class of citizens 
called electors, or sometimes qualified electors. The body of 
electors consists principally of male persons twenty-one years 
old and upwards, of sound mind, who are citizens of the 
United States. No elector can vote at any election unless he 
has resided in the state six months j)receding that election, 
and in the election district thirty days. Women, possessing the 
same qualifications, may vote for public school and public 
library officers and measures. Indians and mixed bloods, who 



THE STATE GOVERNMENT 15 

have adopted the habits and customs of civilization, may be- 
come electors. 

The whole number of registered male electors who voted 
in 1910 was 310,165; of female electors, 16,127. The popu- 
lation of the state in that year was 2,075,708. 

Generally speaking, every elector is eligible to any elective 
office, but the constitution provides that judges of the supreme 
and district courts must be " persons learned in the law," 
which means lawyers who have been admitted to the bar. 
Women may be elected to school and library offices and no 
others. They may, if citizens, hold appointive offices. 

All state and county elections are held on the first Tuesday 
after the first Monday in November in every even number 
year. Persons then elected take office on the first day of 
January following. 



CHAPTEE II 

LOCAL GOVERNMENT 

I. Town Government 

It is an American principle that the puhlic affairs of any 
neighborhood, district or province ought to he controlled by 
the electors thereof. The principle is specially effective in 
the minor subdivisions of states, and results in what is known 
in the science of politics as local administration. 

The whole area of Minnesota has been, or will have been, 
when it is all surveyed, divided by the national survey of the 
public lands into six-mile squares, called townships. A town- 
ship has 36 square miles called sections, each of which is 
further subdivided. The inhabitants of a township organ- 
ized for political purposes form a town, whose electors are 
authorized by law to act as a body politic to a limited extent. 

At the annual town meeting held on the second Tuesday 
in March, the electors choose b} r ballot the following town 
officers : a supervisor, for three years ; a treasurer, a town 
clerk, and one overseer of highways for each road district, each 
for one year; and every two years, two justices of the peace 
and two constables. In each odd number } T ear a town assessor 
is elected for two years. 

The three supervisors in office compose the " town board," 
which has general charge of town affairs, and in particular 
of its finances. The treasurer receives and keeps the moneys 
of the town and pays them out only on orders of the board, 
signed by the chairman of the board and the town clerk. 

Besides electing the town officers, the electors have power 
at the annual town- meeting to make by-laws regarding stray 

16 



LOCAL GOVERNMENT 



17 



1 . 


2 


3 


4 


5 


6 


12 


11 


10 


9 


8 


7 


13 


14 


15 


16 


17 


18 


24 


23 


22 


21 


20 


19 


25 


26 


27 


28 


29 


30 


36 


35 


34 


33 


32 


31 



Township, 6 miles square; 36 sections, each 1 mile square. Sections 
16 and 36 are the school sections. 

animals, fences, roads and bridges, town halls, and cemeteries. 
They also vote the amount of money to be raised by tax for 
town purposes. 



II. Village Government 

Village government is similar to that of towns. Annual 
village elections take place on the same day as town meetings. 
The officers then elected are : a village council, consisting of 
a president, a clerk, and three trustees; also a treasurer, all 
for the term of one year ; also, every two years, two justices of 



IS THE GOVERNMENT OF MINNESOTA 

the peace, unless a municipal court has been established ; and 
two constables. The village assessor is elected in odd number 
years for two years. 

The village council has larger powers than a town board. 
It has authority to appoint, when necessary, an attorney, a 
poundmaster, a street commissioner, fire wardens, a marshal 
and policemen. It has authority, also, to establish a fire de- 
partment; to open, close, improve and light streets; to estab- 
lish and regulate markets; to acquire and improve lands for 
parks and cemeteries; to regulate amusements; to prohibit 
gambling and immorality ; to issue and revoke licenses for the 
sale of intoxicating liquors; to establish public libraries; to 
build and maintain a village jail; to establish a board of 
health and to provide a water supply. It can levy taxes with- 
out a vote of the electors, and can prescribe penalties for vio- 
lations of village ordinances. The treasurer is under the same 
" checks " as the town treasurer. The president and trustees 
are peace officers, authorized to suppress disorders in a sum- 
mary manner and to command the assistance of all persons 
under penalty. 

III. City Government 

The cities of Minnesota have mostly been organized by 
special acts of the legislature called charters, which are quite 
uniform in character. There is, however, a general law for 
cities. City elections take place on the same day as state elec- 
tions or in some cases on certain days in a spring month. 
The officers elected are: a mayor, a treasurer, a municipal 
judge, and a board of aldermen, generally for two-year terms. 

The city council, composed of aldermen elected from wards, 
has power to levy taxes for city purposes, and may incur debts 
not exceeding, in the aggregate, five per cent of the value of 
the taxable property of the city. It has power to enact ordi- 
nances relating to all matters mentioned above as within the 
competence of village councils, and other objects allowed by 
law. The council " appoints " the city assessor, the city en- 
gineer, the city physician, the superintendents of poor, of the 



LOCAL GOVERNMENT 19 

workhouse, parks, etc., and some minor officials. The city 
clerk is in most cases elected, because it is a large part of his 
duty to keep a check on the treasurer. In some large cities 
a comptroller or auditor is elected to relieve the clerk of this 
duty. In such cases the city clerk is generally appointed by 
the council. 

Because of the large appointing and legislative power of the 
council, Minnesota cities generally have what has been called 
the council form of city government. In a few cities the ap- 
pointing power has been transferred to the mayor, and they 
have what is called the mayor form of city government. 
In some large cities the care of parks, public libraries, the 
public health, hospitals and city prisons is placed in the hands 
of boards or commissions, the members of which serve without 
pay, but are allowed their necessary expenses when on duty. 
They have power to appoint the necessary officers and serv- 
ants, and in some cases to leYj taxes for their particular pur- 
poses. St. Paul has a council divided into two bodies, an 
assembly and a board of aldermen, the concurrence of which 
is necessary to action. 

The principal duty of the mayor is to see that the laws of 
the state and the ordinances of the city are enforced. To this 
end he appoints and may suspend or remove all policemen, 
and has, at all time, full control of the police force. He has 
suspensive veto on all acts of the council, and signs all war- 
rants, bonds and contracts. 

Under the so-called Home Rule amendment to the state 
constitution ratified in 1898, already mentioned, Minnesota 
cities and villages have the right to make and amend their 
charters within limits fixed by law. The judges of the dis- 
trict court appoint a charter commission of fifteen freeholders. 
The commission drafts the new charter or amendment and 
submits it to a vote of the city electors. A majority of four- 
sevenths is necessary to adopt a new charter, but subsequent 
amendments may be ratified by a two-thirds vote. 

The city of Mankato, proceeding under the Home Rule 
amendment, has adopted the so-called Commission form of 
city government. The electors of that city choose a mayor and 



20 THE GOVERNMENT OF MINNESOTA 

four councilmen at large. The five compose the city council. 
They appoint all other officials and servants except the mu- 
nicipal judge, who is elected. This council holds all the legis- 
lative and executive powers of the city. Each member has 
charge of a department of the city administration, the mayor 
taking that of public health and police. 

To enable the legislature to pass general laws suited to 
cities of differing size they have been divided by law into four 
classes, as follows: 

First class. Those having more than 50,000 inhabitants. 

Second class. Those having more than 20,000 and not 
more than 50,000 inhabitants. 

Third class. Those having more than 10,000 and not more 
than 20,000 inhabitants. 

Fourth class. Those having not more than 10,000 in- 
habitants. 

According to a law passed in 1907 every Minnesota city 
has power to own and operate any of the following " public 
utilities " : street railways, telephones, water works, gas works, 
and electric light, heat and power works. 

IV. County Government 

The legislature, as authorized by the state constitution, has 
divided the state into counties, and has power to establish new 
counties. Each has its county seat, which can be changed only 
by a vote of the electors of the county. 

The control and management of county affairs is principally 
in the hands of the County Board, composed of commissioners 
elected from separate districts. Counties, having over 500 
square miles and over 75,000 inhabitants, have seven commis- 
sioner districts; others have five. The members of the board 
are elected for four years and receive salaries varying from 
$100 to $1,200 according to the value of the taxable property 
of the county. The county board has full control of the prop- 
erty and finances of the county, determines the amount of 
money to be raised by taxation for county purposes, directs 



LOCAL GOVERNMENT 21 

all expenditures, and examines and passes on all accounts and 
vouchers. It has the care of county roads and bridges, main- 
tains the county court house and jail, and in some counties 
has the care of the poor. 

The elective officers of the county are : the county auditor, 
the county treasurer, the register of deeds, the sheriff, the 
county attorney, the county surveyor, the coroner, and the 
county superintendent of schools. 

The duties of these officers are mostly indicated by their 
titles. The county auditor is clerk of the county board, is 
bookkeeper of the county, and holds a rigid check on the 
county treasurer. Every citizen concerned has the privilege 
of having deeds, mortgages and other documents relating to 
landed property recorded in the office of the register of deeds. 
If such documents are lost or destroyed, the copies in that 
office are good evidence of title to or interest in land. The 
sheriff attends on the sessions of the district court, summons 
jurors and witnesses, and executes the orders and decrees of 
the court. He is the principal " peace officer " of the county, 
and may call on bystanders to assist him in making arrests 
and quelling riots. Any person who refuses his aid is liable 
to be punished for a misdemeanor. The coroner's business is 
to investigate cases of death by violence; and ascertain who, 
if anyone, is criminally implicated. 

It needs to be remembered that while " municipalities," that 
is, towns, villages, cities, and counties, have a considerable 
range of power in local government, all that power is derived 
from the state legislature, in which all legislative powers is 
vested by the state constitution. Legislative power may be 
delegated to municipalities, but to no other bodies, not even to 
the electors themselves, except in the very few cases of " ref- 
erendum " provided for in the state constitution. All mu- 
nicipalities are declared by law to be " corporations/' and 
as such may sue and be sued, and may take, hold, and dispose 
of property for public purposes. 

Although municipalities exist for local government, they 
also serve as administrative agencies for the state. For 
example : 



22 THE GOVERNMENT OF MINNESOTA 

All town, village, and city assessors act for the state as well 
as for their several jurisdictions ; 

County auditors apportion the state taxes to taxing districts 
of their counties; 

County treasurers collect the state taxes in their counties 
and pay them over to the state treasurer ; 

The elections of state and district officers are conducted hy 
municipal agents and officials; 

The enforcement of state laws relating to public health is 
left to local boards of health ; 

The granting of licenses for the sale of intoxicating liquors 
is confided to village and city councils and county boards ; 

iPhe management of public schools is confided to trustees of 
common, special, and independent districts; 

All crimes are offenses against the state, but they are tried 
and punished in the counties where they are committed. 



CHAPTEE III 

IMPORTANT LAWS 

I. Election Laws 

The state constitution prescribes the qualifications of 
electors ; fixes the times for holding general elections ; and re- 
quires all elections, with a trifling exception, to be by ballot. 
It leaves all details to be determined by the legislature. 

Each town, village and city ward constitutes at least one 
election district. Councils and town boards may increase that 
number but may not put more than 400 voters in a district, | 
except where voting machines are used, and then they may put 
in 600. 

Town boards act as judges of election in rural districts, and 
municipal councils appoint three judges for each village or 
city election district. The judges of each district appoint two 
clerks of election, but the town clerk must be one of the two. 
The first duty of the election officers is to attend to the regis- 
tration of voters. On certain days before every general elec- 
tion they make up complete lists of all persons entitled to 
vote in their respective districts. 

As each elector presents himself on election day he is iden- 
tified by the judges and his name found on the registration 
list. He is then furnished with printed ballots containing the 
names of all candidates to be voted for. Taking these, he 
enters a booth, and there, alone and out of sight, makes an 
" X " mark opposite the name of every candidate for whom he 
votes. He then leaves the booth and hands his ballots, sepa- 
rately folded so as to conceal all his marks, to one of the 
judges, who immediately drops it into the ballot box, and calls 

23 



24 THE GOVERNMENT OF MINNESOTA 

out the name of the voter. The word " Voted " or the letter 
" V " is written in the proper column opposite the voter's 
name. This plan of voting, established in 1891, was intended 
to prevent fraudulent voting and has proved effective. 

In a few large cities voting machines have been put in use 
as allowed by law. Instead of marking printed ballots the 
voter pushes down certain buttons opposite the names of his 
preferred candidates. When the last man has voted, the count 
has been mechanically made. The " canvass " of votes, when 
printed ballots are used, is a tedious process. 

The law prescribes very severe penalties for violations of 
the election laws. False registration, unlawful voting, brib- 
ery, misconduct of election officers, and destruction of elec- 
tion returns are declared to be felonies. Among misdemean- 
ors, are such offenses as coercing of voters, refusing employees 
time to vote, wilfully defacing ballots, issuing defamatory cir- 
culars, and the like. The law prescribes the kind and amount 
of expenditures a candidate for an elective office may make or 
have made to further his election ; and requires every candidate 
to file, within three days after the election, a sworn statement 
of all such payments by or for himself. Failure to render such 
account is a gross misdemeanor and no certificate of election 
can be issued to the person neglecting this duty. The law 
specifically forbids any corporation organized for profit from 
contributing money to aid the nomination or election of any 
candidate for office. Any officer, stockholder, agent, or em- 
ployee of such a corporation or company who consents to, or 
takes any part in such a contribution may be fined $1,000 or 
sent to the state prison for one year, or both. The object of 
these provisions is to prevent corrupt practices in elections. 

The nomination of candidates for office was, until lately, 
left to party conventions. This plan has been partly super- 
seded by so-called " primary elections " held under the same 
rules and restrictions as the general elections following. The 
primary election does not apply to state offices; to town, vil- 
lage, and small city offices; nor to certain city boards. The 
flag of the United States must be kept hoisted over every 
voting place, when registration and voting are going on. 



IMPORTANT LAWS 25 

Elections are by far the most important part of republican 
government. The student who will spend the entire day at 
some general election and keep his eyes and ears open, will 
have a better understanding of the election laws and procedure 
under them, than he can acquire by merely reading the consti- 
tution and statutes. 

II. School Laws 

The public schools of Minnesota like those of other states 
are in charge of a separate " administration." This keeps 
them out of politics. 

All the inhabited townships of the State are divided by 
county boards into common school districts. A new district 
must contain at least four sections of land and at least twelve 
resident children of school age. The annual school meeting is 
held on the first Saturday in July. All the electors, male 
and female, of the district are entitled to vote. The school 
meeting has power to vote money for maintaining the school 
and a libraiy, to authorize the erection or improvement of 
school buildings, and to provide for free text-books. All other 
school matters are left in charge of a board of trustees, known 
as the school-board. It is composed of a chairman, a treas- 
urer, and a clerk, one of whom is elected at each annual meet- 
ing, to serve for three years. 

Villages and cities generally form single independent school 
districts, each having as many schools as may be deemed neces- 
sary. Their schools are commonly graded, and the more im- 
portant have high schools. The management is in the hands 
of a board of directors, elected for six years. The board elects 
its own officers and a superintendent of schools, who becomes 
a member of the board without a vote. Some of the older vil- 
lages and cities have had their school systems established by 
special acts of the legislature and for this reason are said to 
form special school districts. Their organization and man- 
agement differ in details only from those of independent 
school districts. 

The employment of teachers for public schools of all kinds 



26 THE GOVERNMENT OF MINNESOTA 

is in the hands of school boards, but they can employ only per- 
sons who have been found qualified by public examinations, 
and have furnished proof of good moral character. 

All the common schools of the state are under the super- 
vision of the state superintendent of public instruction, ap- 
pointed by the governor and confirmed by the state senate. 
Under him are county superintendeuts, one being elected in 
each county for- the term of two years. Independent and 
special school districts are not under the supervision of the 
county and state superintendents, but certain reports are re- 
quired of them. Instruction is free in all public schools, and 
text-books may be furnished free by a vote of school meetings. 

The costs of supporting the district schools are derived from 
the following sources: 

1. The interest on the invested state school fund derived 
from the sale of school lands granted by the national 
government to the Territory of Minnesota in 1849, being 
sections 16 and 36 in every township. The fund now 
amounts to nearly $25,000,000 ; 

2. The annual state school tax of one mill on the dollar; 

3. The annual county school tax of one mill on the dollar; 

4. The " district school taxes " levied in and by each 
district ; 

5. " State aid," so-called, consisting of annual appropria- 
tions of money out of the state treasury to encourage 
and to reward efforts of school authorities to improve 
their schools. The sum of $100,000 is distributed every 
year to those common school districts which employ 
teachers holding first or second grade state certificates; 
provide suitable buildings, library, and apparatus; and 
maintain their schools for not less than eight months. 
Similar aid is granted to high schools, graded schools, 
and semi-graded schools. The high school board has the 
management of the aid provided for these schools. 

A late statute has provided for the " consolidation " of the 
rural school districts of counties into new districts from four 



IMPORTANT LAWS 27 

to six miles square. The movement toward consolidation may- 
be started by the county board of any county at its pleasure; 
and whenever twenty-five per cent of the resident freeholders 
of the county living on farms sign and present a petition to 
the board, it becomes its duty to organize a " consolidation 
commission " of seven persons to formulate a plan and pre- 
pare a map of the new districts. This plan must then be 
submitted to a vote of the eleetors, male and female, of the 
county ; and a majority is necessary to its adoption. The in- 
tention of the law is to abolish small and isolated schools and 
replace them with larger ones, better housed and equipped, 
where the pupils may be graded and instructed by better teach- 
ers than can commonly be employed for the small schools. 
The plan implies and authorizes the free transportation of the 
pupils to and from their homes. Sufficient time has not 
passed to permit the operation of this excellent plan on any 
large scale. 

Another recent development in education in Minnesota is 
the law which empowers any county board, when authorized 
by a vote of the electors of the county, to establish a county 
school of agriculture and domestic economy. Such schools 
are to be managed by a board of three trustees. The county 
superintendent of schools is one, and the other two must be 
appointed by the county board. The law requires instruction 
to be given in the elements of agriculture, including the soil, 
the plant life, and the animal life of the farm; and in farm 
accounts, manual training, and domestic economy. Each 
school must have at least ten acres of land suitable for experi- 
ments and demonstration. These schools are free to all in- 
habitants of the counties, provided they shall have had a com- 
mon school education. They may share in " state aid " by 
conforming to a certain standard. 

Still another novelty is the law authorizing city high 
schools in limited numbers to open and maintain agricultural 
departments open to all residents of the state, and to receive 
state aid for so doing. As agriculture is, and will always 
remain, the leading industry of the state it is reasonable that 
great efforts should be made to increase its efficiency by the 



28 THE GOVERNMENT OF MINNESOTA 

diffusion of science, the improvement of seeds, animals, and 
machinery; and the training of cultivators in the best farm 
processes. 

The six State Normal Schools and the University of Min- 
nesota belong to the state system of public schools, and in- 
struction is free in all of them, except in the " professional " 
departments of the University. 

To Minnesota belongs the credit of first giving the public 
schools of a state a complete and effective organization. The 
common schools have always been free. When the University 
was opened, instruction therein was made free with the excep- 
tion just noted. Instruction was free in the high schools of 
cities and villages, but only to pupils residing therein. The 
secondary education, therefore, was not free outside of cities 
and large villages. In 1878, a law was passed to grant aid to 
all high schools which, having proper equipment and teachers, 
would arrange courses of study preparatory to the University, 
and admit thereto pupils of both sexes from any part of the 
State free of tuition. This law has been very effective and 
there are now more than two hundred high schools fitting stu- 
dents to enter the University. School education in Minnesota 
is accordingly free from the kindergarten to the doctor's de- 
gree in the State University. 

The Minnesota schools are open to all the children of the 
state. The law provides that any member of a school board, 
who without sufficient cause or on account of race, color, na- 
tionality, or social position, votes for the exclusion, expulsion, 
or suspension of any person entitled to the use of the school 
shall forfeit fifty dollars. 

Minnesota law makes the district schools free, but at the 
same time and properly, makes attendance in them compul- 
sory. Every resident of a school district having charge of 
any child between the ages of eight and sixteen (in first-class 
cities, eight and eighteen) years must send such child to a 
public or private school in each year during the entire term the 
public schools are in session, unless excuse has been granted 
by the school board for one of the reasons named in the law. 
Violation of this provision of law is a misdemeanor punishable 



IMPORTANT LAWS 29 

by a fine of not over fifty dollars, or imprisonment in jail for 
thirty days or less. 

School boards are authorized to employ truant officers and 
establish truant schools for children who absent themselves 
without proper excuses from their schools. Only in a few 
large cities has this been found necessary. 

Under the head of " Crimes against morality, decency, etc./' 
the Minnesota statutes provide that every school pupil under 
age who shall smoke or use cigars, cigarettes, or tobacco in 
any form in any public place shall be guilty of a misdemeanor, 
and be punished for each offense by a fine of not more than ten 
dollars, or by imprisonment in the county jail for not more 
than five days. Any person who furnishes a minor pupil with 
tobacco in any form is guilty of a misdemeanor, and the maxi- 
mum penalty is fifty dollars fine or thirty days' imprisonment. 

The intention of the law to discourage vice, promote health, 
and inculcate good morals and conduct is shown by such pro- 
visions as that which requires the teachers in all public 
schools to give instruction in morals, physiology, and hygiene, 
and in the effects of narcotics and stimulants. 

There is also a statute which forbids any pupil of a public 
school from becoming a member of any secret fraternity, or 
soliciting another pupil to join one. School boards have power 
to suspend or dismiss those who violate this lav/. 

III. Taxation 

No government can be maintained without a great deal of 
money. The Minnesota constitution, therefore, provides that 
the " power of taxation shall never be surrendered, suspended, 
or contracted awajr." The principal source of revenue for 
public purposes is the assessed tax on real and personal prop- 
erty. The process of obtaining this revenue is too comjjlicated 
to be described here. It would form an excellent topic for 
collateral study. 

In brief, however, it may be said that all the property in 
the State or owned in the State is listed and assessed, and the 
results recorded in the offices of the county auditors. The 



30 THE GOVERNMENT OF MINNESOTA 

amounts of money to be collected for state and municipal pur- 
poses are next ascertained. County auditors then " extend " 
the taxes, so as to charge each taxable person with his rate- 
able proportion. They then turn over the completed tax 
books to the treasurers of their several counties. County 
treasurers collect all the taxes and distribute the money in 
proper amounts to the State and to the municipalities, school 
districts included. 

If a person does not pay his personal tax within the time 
allowed by law, the sheriff seizes a sufficient amount of his 
goods and chattels and sells them at public sale. When taxes 
are delinquent on real estate, the land is sold at public sale 
by the county auditor; but it may be redeemed at any time 
within three years. It is understood that all public property 
is exempt from taxation ; so, also, is property used for purely 
educational and charitable purposes. All such property is, 
however, listed and assessed. 

Another source of revenue is the tax imposed on railroad, 
express, and telephone companies, being a certain percentage 
of their gross earnings within the State. Eailroad companies 
pay four per cent ; express companies, six per cent ; and tele- 
phone companies, three per cent. The properties of these 
companies are not listed and assessed. The state treasurer 
collects these taxes and holds the money in the state treasury 
for state purposes. 

Still another, and a novel form of taxation is the so-called 
inheritance tax. This is a tax levied on the estates of deceased 
persons, who leave property worth more than $10,000, but 
only on the excess of that sum. The rate is said to be " gradu- 
ated." When the said excess is under $50,000, the rate is one 
and one-half per cent; when over $50,000 and under $100,000, 
it is three per cent; when it is over $100,000, five per cent. 
This tax is paid to the county treasurer, who immediately 
transmits the whole amount to the state treasurer, to be de- 
voted to state purposes. 

There is still another kind of taxation. Up to 1907 mort- 
gages on land were included in personal property and were 
supposed to be listed and assessed accordingly. As a fact the 



IMPORTANT LAWS 31 

tax was very generally evaded. The student may inquire by 
what means. Under the law enacted in the year mentioned 
the only tax on mortgages now is one of fifty cents on each 
$100 of the debt secured by the mortgage. This tax must be 
paid before the mortgage can be recorded. The tax goes into 
the county treasury. 

The taxing system of this state, like that of others, is well 
understood to be defective. The tax commission is charged 
with the duty of investigating the tax laws of other states and 
countries, and of submitting such propositions for the im- 
provement of our own as they may think worthy of consid- 
eration. 

IV. The Militia and National Guard 

In ordinary times the officers of the peace are able to enforce 
the judgments of the courts and to suppress disorders. There 
are, however, extraordinary occasions when a large armed 
force is necessary to put down riots and insurrections, restrain 
Indians, and even repel hostile invasion. All organized states, 
therefore, have some pla ; n for collecting an armed force. 

Minnesota has two such ways. First, the state militia com- 
posed of all able-bodied male citizens between the ages of 18 
and 25, except such as may be in the United States army or 
navy, ministers of the gospel, Indians not taxed, insane per- 
sons, and persons who have been convicted of infamous crimes. 
When the state census is taken in the middle of each decade 
the enumerators are required to ascertain and designate all 
men liable to military duty. The adjutant general of the 
state is, thereupon, required to make up tables of the men so 
designated in each town, village, and city, arranged by coun- 
ties. In this way a complete enrollment of the militia is made. 
The governor may require tax assessors also to make similar 
lists of militia men. 

In the older states of the Union the militia was formerly 
organized, armed, and drilled. This was not difficult in times 
when every householder kept a hunting rifle. Instead of 
arming the whole militia our states, Minnesota among them, 
have adopted the plan of an active militia under the title of 



32 THE GOVERNMENT OF MINNESOTA 

National Guard. The Minnesota National Guard consists in 
time of peace of three regiments of infantry forming a brigade, 
and one battalion of field artillery. These are manned and 
officered by volunteers and have the organization, uniform, 
arms, and discipline of the regular army of the United 
States. The state owns an encampment ground at Lake City 
where the national guard assembles from year to year for in- 
struction and exercise. The Minnesota National Guard is, 
therefore, an actual armed and disciplined force, which the 
governor may call out to enforce the laAvs, or suppress dis- 
order. 

V. Liquor Laws 

All state legislatures hold a so-called police power to 
provide for the health, safety, and welfare of the people. This 
power is exercised in many ways : to relieve the poor, to pre- 
vent the adulteration of foods, to prevent the spread of epi- 
demic diseases, to preserve fish and game, and the like. 

One of the best examples of the police power is that em- 
ployed for the control of the sale of intoxicating liquors. 
Some states, Maine and Kansas, for example, entirely forbid 
the sale of intoxicating liquors for drinking. Minnesota has 
preferred to regulate such sale. The following are the prin- 
cipal provisions of law for that purpose: 

1. No person may sell any intoxicating liquors to be drunk 
on the premises without a license. Licenses are issued 
by village and city councils and county boards to persons 
found after investigation in each case to be of good moral 
character and otherwise qualified. Persons so licensed 
must pay an annual fee ranging from $1,000 in large 
cities down to $500 in other places, and each must fur- 
nish a bond of $2,000 " conditioned " that he will keep 
a quiet and orderly place, permit no gambling, and com- 
ply with the liquor laws in all respects. Any place where 
drinking is carried on without license is declared by law 
to be a public nuisance ; and any person who keeps such 
a place or leases or lets any building or room for such 
purpose is guilty of a misdemeanor. 



IMPORTANT LAWS 33 

2. Towns and villages have the power to decide by a ma- 
jority vote of their electors whether liquor licenses shall 
be granted therein. If the vote is against license, no 
license can be issued until that vote is reversed at a later 
election. This is commonly known as town option; and 
many towns and villages have voted dry. A large num- 
ber of citizens are in favor of county option, but have 
not been able to secure its establishment by law. 

4. No sales can be made even under license in certain 
places : in the State capitol, within one mile of the State 
University on the east side of the Mississippi river, 
within 1500 feet of any state normal school, or rural 
school, nor within two miles of an} r camp meeting. The 
law further forbids the introduction of liquor into armo- 
ries of the national guard, the state prison, and city and 
village lockups. No justice of the peace may hold court 
in a saloon or room adjacent to or connected with one ; 
and no election may be held in any such place. 

5. No sales, even under license, can be made to certain per- 
sons : minors, pupils, or students in any educational insti- 
tution in the state, drunkards, or intoxicated persons, 
persons of Indian blood, spendthrifts after due notice, 
and persons on parole from any state institution. 

6. Licensed druggists may sell upon the written prescrip- 
tions of reputable, practising, and licensed physicians. 

7. Other noteworthy provisions : Drunkenness is declared 
by law to be a crime punishable by fine or imprisonment. 
No elector is allowed to vote when grossly intoxicated. 
Any public officer in the state may be removed from office 
for habitual drunkenness. No railroad employee con- 
cerned in the running of trains or keeping of stations 
may be intoxicated while so engaged. The same rule 
applies to steamboat employees. Should not drivers of 
automobiles be included? 

All these provisions of law are sanctioned by severe pen- 
alties. All sheriffs, constables, marshals, and policemen are 
required to summarily arrest any person violating them. 



34 THE GOVERNMENT OF MINNESOTA 

They may not wait till some other person has lodged a com- 
plaint. All officials, including members of county boards 
and municipal councils who refuse or neglect to perform 
their duties under the liquor laws, are declared guilty of 
malfeasance, to be removed from office, and to pay fines rang- 
ing from $100 to $500. 

The student may form his own opinion of a business which 
needs so much regulation. The only perfect remedy for the 
abuse of intoxicating liquors and narcotics is the universal dis- 
use of them for drinking. 

VI. Corporations 

The advantages of uniting talent and capital for the prose- 
cution of large business operations need neither proof nor il- 
lustration. One well-known way of forming such unions is 
by partnership. But, there is this notable drawback to part- 
nerships, that if one of the partners dies the partnership is 
at an end and the business has to be wound up. To over- 
come this difficulty the form of association known as the 
Corporation was long ago invented and legalized. In early 
times, in England and America, corporations were created by 
special acts of the legislature called " charters." 

This plan has given way to the better one of permitting the 
organization of corporations under general laws. Minnesota 
has such a general corporation law. Under its provisions any 
three or more persons may form a corporation, by carefully 
observing the following directions: 

1. They must sign and acknowledge a certificate of in- 
corporation showing : 

a. The name, the business, and the place of the cor- 
poration ; 

b. The time it is to last, if limited; 

c. The names and residences of the incorporators; 

d. The names and addresses of the first directors and 
the date of its annual meeting; 

e. The amount of its capital stock, if any, and the 
number and par value of its shares. 



IMPORTANT LAWS 35 

/. The amount of debt which the corporation may 
incur. 

2. This certificate must be filed for record with the secretary 
of state, and with the register of deeds of the county of 
the place of business named. 

3. The certificate must next be published twice in full in 
a qualified daily newspaper of the count}^ and proof of 
such publication (usually the printer's affidavit) must 
be filed with the secretary of state. 

The corporation is now complete and notice has been given 
to " all the world " of its name, the place and nature of its 
business, and the amount of debt it may incur. The associated 
persons composing it have now become in the contemplation 
of law a single body (in Latin, Corpus), an "artificial per- 
son/' empowered to do, not all kinds of business, but only 
that or those named in its certificate of incorporation. 

The stockholders of a corporation elect their board of direc- 
tors, which appoints all its officials and servants. Each stock- ~ 
holder has as many votes as he owns shares. A single stock- 
holder, or a group, holding fifty-one per cent of the stock can 
control the affairs of the corporation. A " minority stock- 
holder " is in the position of a person who has put his money 
in the hand of another person or group to use at pleasure. As 
stockholders are entitled to the profits of the business, they 
are also liable for its losses, but not, as in old times, in their 
whole estates. Stockholders in Minnesota corporations gen- 
erally are liable to lose all the money they may have paid on 
their shares and also an additional amount equal to the par 
value of those shares. This liability enhances the credit of 
corporations. 

In regard to the periods for which corporations may be 
chartered there is some difference. Savings banks have " per- 
petual succession " to use an old law phrase ; railroad com- 
panies may specify in their certificates their periods of ex- 
istence; other corporations are limited to thirty years, but 
may easily be renewed. 

Corporations may be terminated in three ways: 



36 THE GOVERNMENT OF MINNESOTA 

(1) by expiration of their time limit, 

(2) by voluntary dissolution by a majority vote of stock- 
holders, 

(3) by forfeiture of their rights and privileges by violation 
of law. 

As corporations are the creations of law, so their continued 
existence depends on a strict compliance with law. All of 
them are subject to " visitation." The governor may at any 
time require the attorney-general to examine the affairs and 
condition of any corporation, and make a report in writing. 
,The legislature or either branch thereof may, by committee, 
make examinations of corporations. 

The attorney-general is authorized to sue, in the name of 
the state, any corporation which he believes to have violated 
the law; and district courts have power to enjoin unlawful 
practices, if proven. The attorney-general is required to bring 
suit at the instance of any private citizen against a corpora- 
tion, provided he gives security for costs and expenses. The 
public examiner maintains a strict supervision over all finan- 
cial corporations and calls them to account for all departures 
from law. 

Corporations organized outside of the state are known as 
foreign corporations. They may carry on business in Minne- 
sota provided they maintain a public office and a resident 
agent in the state, and pay certain license fees into the state 
treasury. 

Corporations organized for internal improvements, such as 
railroads, street railroads, canals, telegraph, and telephone 
lines ; water, heat, light, and power supply are designated as 
public service corporations. They are specially authorized 
to exercise the " right of eminent domain," that is the right 
of taking private property for public purposes on paying the 
value of such property. The state has the power to regulate 
all such corporations, and to fix the charges for their services. 
The law provides a way by which any city or village may buy 
out any public service corporation. 

U) 



JUN 



20 t*ir 



One copy del. to Cat. Div. 



Jn* 20 19U 



